Citation Nr: 22040176 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-54 641 DATE: July 13, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for an overdose of prescribed medication is denied. FINDING OF FACT The Veteran's overdose of prescribed medication did not result in additional disability and did not permanently aggravate the Veteran's nonservice-connected diabetes mellitus beyond the natural progression of the disease process. CONCLUSION OF LAW The criteria for compensation benefits pursuant to 38 U.S.C. § 1151 for overdose of prescribed medication have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Army from November 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2017 rating decision that denied the within claim. The Veteran and his wife testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2021. The Veteran contends that he suffers from residual cognitive impairment resulting from a prescribed medication overdose due to the negligence of VA treating providers. Specifically, the Veteran contends that VA was negligent in providing simultaneous prescribed doses of Orlistat and Metformin associated with treatment of diabetes mellitus, which resulted in an October 2015 hypoglycemic incident. The Veteran lost consciousness and was hospitalized. The Veteran contends that he suffers from residual cognitive impairment resulting from the October 2015 hypoglycemic episode. Under the applicable criteria, compensation under 38 U.S.C. § 1151 shall be awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished him or her under any law administered by VA, and the proximate cause of the disability was (A) 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 (B) an event not reasonably foreseeable. To determine whether an additional disability was caused by medical treatment, VA compares a 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 a veteran has an additional disability does not establish cause. A disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c). After a careful review of the evidence of record, the Board finds that the evidence persuasively weighs against a finding that the Veteran sustained additional disability, as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or that there is any additional disability resulting from VA treatment constituting an event that was not reasonably foreseeable. The reasons follow. Although the record supports that the Veteran experienced an overdose of prescribed medication in October 2015, the record does not show that the Veteran has endured additional disability resulting therefrom, and, therefore, he is not entitled to compensation under 38 U.S.C. § 1151. The Veteran was hospitalized in October 2015 after losing consciousness from an episode of hypoglycemia. At the hospital, the Veteran reported that he had woken up in the morning in his normal state of health and took his medicines as prescribed, including his oral hypoglycemics of both Metformin and Orlistat. The attending physician noted that the Veteran's glucose level had dropped to about 12, which rose and stabilized following admission to the emergency department. The Veteran was referred for inpatient treatment for stabilization for syncope, likely caused by hypoglycemia. The Veteran was placed on observation thereafter and he was described as alert, oriented, and cooperative, with no apparent focal deficits. The Veteran underwent a CT scan of his head, which was noted to show no acute changes with "no other problems as far as intracranial changes." The Veteran was discharged the day after his inpatient admission. The discharge summary stated that the Veteran's hypoglycemia was secondary to taking his prescribed Orlistat medication, which was described as "way overdosed." The Veteran's medications were adjusted prior to discharge. The record reflects generally stable functioning thereafter, without any chronic or sustained effects associated with the October 2015 episode of hypoglycemia. In recounting his medical history in April 2016, the Veteran described the October 2015 episode and stated that he is "ok now," and that his doctor simply advised him to check his blood sugar once per day to make sure it leveled out. The Veteran underwent a VA examination in February 2017 for assessment of the Veteran's § 1151 claim in relation to his diabetes mellitus. The examiner acknowledged that the Veteran's combination of prescribed medications, specifically his doses of Orlistat and Metformin, greatly contributed to the October 2015 hypoglycemic episode. However, the examiner opined that there was absolutely no evidence that the Veteran's nonservice-connected diabetes mellitus was aggravated beyond its normal progression by the October 2015 hypoglycemic event. The examiner noted that there have been no additional events and that the Veteran's diabetic treatment has not varied. The Board finds the opinion of the February 2017 examiner to be probative as to the issue of aggravation of the Veteran's nonservice-connected diabetes mellitus, as it was provided by a medical professional who reviewed the evidence of record and provided a rationale supported by the evidence of record. Accordingly, the probative, competent evidence of record is against a finding that the Veteran's suffered additional disability of his nonservice-connected diabetes mellitus as a result of the overdose of prescribed medication and the Veteran cannot be awarded compensation under 38 U.S.C. § 1151. The Board acknowledges that the Veteran's representative contended at the November 2021 hearing that the February 2017 examination was inadequate because the examiner addressed only the Veteran's diabetic response, and not any cognitive residuals, to include seizures, of his October 2015 hypoglycemic event. The Board finds this contention to be unpersuasive. As stated, the February 2017 examiner's opinion is only probative as to the topic addressed. Further assessment relating to cognitive residuals from the October 2015 hypoglycemic event is not required or supported by the record, as discussed in greater detail below. The Veteran's representative stated that the Veteran had no medical evidence of the alleged residual disabilities. However, the Board notes that, not only is there no medical evidence of the alleged residual conditions in the record, but the existing evidence also expressly contradicts any such finding. For example, during the Veteran's inpatient hospitalization following the October 2015 hypoglycemic incident, the Veteran was described as alert, oriented, and cooperative with no apparent focal deficits. A CT scan of the Veteran's head taken after the hypoglycemic episode showed no acute intracranial changes. Normal findings were repeated on recurrent physical examinations thereafter. The Veteran was found to be fully alert and oriented with no focal neurological deficits in January 2017, April 2017, August 2017, October 2017, May 2018, May 2019, November 2019, May 2020, and September 2020. During a diabetic foot examination in December 2018, the Veteran denied experiencing any constitutional symptoms. Despite the Veteran's routine medical treatment, the record does not show complaints of seizures or associated symptoms. Physical examination findings were explicitly negative for seizure in August 2018, January 2020, and May 2020, and December 2020. Additionally, recent treatment records also reflect that the Veteran has been able to serve as the full-time caretaker for his wife, a role that is not suggestive of a person with a cognitive disability. For these reasons, the evidence persuasively weighs against finding that the Veteran has a residual cognitive and/or seizure disability as alleged, and, thus, there is no "additional disability" resulting from the October 2015 hypoglycemic episode, and the Veteran is not entitled to compensation pursuant to 38 U.S.C. § 1151. The Board notes that VA has not provided the Veteran with an examination or opinion in connection with the Veteran's claim of residual cognitive deficits or a seizure disorder as a result of the hypoglycemic episode. VA must provide a medical examination and/or medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show competent evidence of a current disability or persistent or recurrent symptoms of a disability involving a cognitive and/or a seizure disorder. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria must be met, and at least one element is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this theory of the claim. Additionally, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that an event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). To the extent that the Veteran and his family allege that the Veteran has residual cognitive deficits or a seizure disorder, they are not competent to render such a diagnosis, which requires medical expertise. There is no such diagnosis of record, despite the Veteran routinely receiving medical treatment and undergoing physical examinations. The medical findings of record contradict such finding. Accordingly, lay statements regarding diagnoses are not probative evidence in this matter. For all the reasons discussed above, the evidence is persuasively against the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 involving an overdose of prescribed medication. As the evidence is persuasively against the claim for service connection, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.