Citation Nr: 1718794 Decision Date: 05/26/17 Archive Date: 06/05/17 DOCKET NO. 11-00 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Amy B. Kretkowski, Attorney at Law ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to July 1974. He died in May 2008. The appellant is the Veteran's daughter. The appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In her January 2011 substantive appeal, the appellant requested a hearing before the Board. The appellant's attorney withdrew this request in November 2013. In January 2014, this matter was remanded for additional development, and once again remanded in January 2016 for additional development, specifically pertaining to an article submitted by the appellant's attorney entitled Management of Opioid Therapy for Chronic pain, which indicates that physicians "should be especially cautious about prescribing controlled substances" to patients with substance use history. The article further indicates that the "detection of synthetic opioids and newer benzodiazepines may not be part of routine [urine] screens," and that physicians should therefore "be aware of the type of drugs tests, and the sensitivity and specificity of their facility's Urine Drug Test (UDT) assay." Hence, the 2016 remand directive requested the VA medical examiner to opine on the significance of the above noted article and specifically the significance of urine drug screens in monitoring prescriptions of methadone. The appellant changed representatives during the pendency of the appeal. Initially, she was represented by the Disabled American Veterans. Subsequently, she appointed Amy B. Kretkowski as her attorney; she is recognized as the appellant's current representative. FINDINGS OF FACT 1. The Veteran died in May 2008. The death certificate listed the immediate cause of death as gunshot wound to the chest. 2. The Veteran's death was not caused by VA hospital care, medical or surgical treatment, or examination. 3. The proximate cause of the Veteran's death 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 hospital care, medical or surgical treatment, or examination; nor was it the result of an event not reasonably foreseeable. 4. VA did not fail to diagnose and/or treat a preexisting disease or injury. CONCLUSION OF LAW The criteria for entitlement to DIC under 38 U.S.C. § 1151 for cause of death have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and duty to assist a claimant. The Board notes that in the context of a claim for cause of death benefits, specific notice requirements exist. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant was provided with adequate notice in a January 2009 letter, prior to the April 2009 decision on appeal. VA has also fulfilled its duty to assist the appellant by making reasonable efforts to assist in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 51038A (a) (West 2014). The Veteran's service treatment records are of record as are various VA treatment records, to include records relating to treatment for back pain and depression. Private treatment records from four medical providers, two of whom treated the Veteran prior to his death, are also of record. The appellant has not identified any outstanding evidence which could support her claim, and there is no evidence of any VA error in assisting in the procurement of records that could result in prejudice to the appellant. Overall, the Board finds that the evidence of record is sufficient to decide the appellant's claim. A VA opinion was obtained in April 2009 and subsequently obtained in January 2015 and April 2016. Upon review, the Board finds the VA examiners' opinions, taken as a whole, to be thorough, complete and sufficient bases upon which to reach a decision on the appellant's claim. See Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). In conclusion, VA has met all statutory and regulatory notice and duty to assist provisions with respect to the appellant's claim. Legal Criteria DIC shall be awarded for a qualifying death of a Veteran in the same manner as if such death were service-connected. 38 U.S.C.A. § 1151 (West 2014). In order for a death to qualify for compensation under 38 U.S.C.A. § 1151 (West 2014), the death must not have been the result of the Veteran's willful misconduct and was caused by VA hospital care, medical or surgical treatment, or examination and the proximate cause of death was 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 not reasonably foreseeable. 38 U.S.C.A. § 1151 (a) (West 2014); see also Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013) ("Section 1151 thus contains two causation elements; a Veteran's disability must not only be 'caused by' the hospital care or medical treatment he received from the VA, but also must be 'proximately caused' by the VA's 'fault' or an unforeseen 'event'). To establish causation of a death, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the Veteran's death. Merely showing that a Veteran received VA care, treatment or examination and that the Veteran died does not establish causation. 38 C.F.R. § 3.361 (c) (1) (2016). 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) (2016). In other words, the evidence must show that (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 05-01, 66 Fed. Reg. 33312-01 (June 21, 2001). The Board acknowledges that the three elements listed immediately above were delineated by VA's General Counsel in the analysis of a version of 38 U.S.C.A. § 1151 effective for claims filed prior to October 1, 1997. However, despite the fact that the law in effect at such time did not contain a "fault" requirement as it now does, the Federal Circuit determined that it is impossible to delineate proximate cause without speaking in terms of duty when considering a claim based on failure to diagnose, even for claims filed prior to the change in law. Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010). As such, there has been no real change in the standard of these particular claims and the elements delineated by VA's General Counsel remain relevant to claims filed after October 1, 1997, such as in the present appeal. 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 was the proximate cause of a Veteran's death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's death and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361 (d) (1) (2016). Whether the proximate cause of a Veteran's death was an event not reasonably foreseeable is 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 (2016). 38 C.F.R. § 3.361 (d) (2) (2016). Analysis VA treatment records showed that the Veteran started care at the VA in May 2003. His active medical problem at that time included fatty liver, coronary artery disease, hyperlipidemia, low back pain, old myocardial infraction, leg pain, and hiatal hernia. The records also show that he had his first psychology visit in December 2003. The Veteran reported he had been feeling depressed "on and off" since 1999, which corresponds with the time that he sustained back injury. The Veteran stated that he utilized a "fifth of whisky every few days," to deal with his pain and emotions. His wife who was present at his visit described him as "self-destructive." The Veteran informed his VA doctor that he had his first suicidal thought in January 2001, and it had been "up and down" ever since. Furthermore, the Veteran informed his psychologist he was laid-off in 2001 due to a lower-back injury he sustained at work. He reported no energy, sense of hopelessness, sadness and guilt for not being a provider for his family. When asked about suicidal ideations, the Veteran stated he had been "feeling thoughts," of ending his life, but had no plan at that time. The Veteran's wife, who was also present at the consultation, informed the psychologist that the Veteran had exhibited suicidal behaviors in his past, "wanting to poison" himself with carbon monoxide in his garage, and driving recklessly. The 2003 treating psychologist opined that the Veteran appeared to be depressed due to many life changing circumstance that have affected him and his family in the past years. The treating doctor also opined that the Veteran appeared to be dealing with the guilt and hopelessness surrounding his employment status and chronic back pain. Treatment records from December 2003 to July 2007 indicate that the Veteran was prescribed pain medications, including Hydrocodone 500mg for his lower back pain, as well as pain to both lower extremities and feet. At his psychotherapy session dated in February 2004, it was noted the Veteran had moderate improvement in his mood and interpersonal functioning; and that he appeared to be coping more effectively with his pain. The Veteran's psychologist opined, that the Veteran's mood was generally euthymic, and that there was no indication of acute distress. See, Compensation & Pension Examination Report, dated in April 2016. In March 2004, the Veteran followed-up with the pain clinic, at that visit, the Veteran stated that the medication he was taking "are taking the edge off," he also stated that his symptoms had gotten worse both in his legs and in both arms since his fall the previous year. The Veteran's MRI showed degenerative changes in the spine as well as granulation tissue in the lumbar region. The medical record indicates it was after his March 2004 visit his treating physician made the decision to prescribe Methadone 2.5mg. Following the Veteran's visit to the pain clinic in April 2004, the Veteran's wife left a message that the Veteran was having some trouble, she reported that the Veteran's legs were swollen, and that he had complained that he could not take Methadone, because it made him "very tired." The Veteran's wife requested that the Veteran's Vicodin be increased to 7.5/500 and that he should take three per day. In May 2004, the Veteran was accompanied by his wife to his psychologist, he reported improved mood, and denied suicidal ideation. The Veteran reported he drank a lot in the military and used a lot of drugs. He also reported he got early military discharge for using alcohol and drugs, and he got two article 15s for drug and alcohol consumption. The VA psychologist assured the Veteran of individual counseling every 2-3 weeks, aimed at helping the Veteran with coping skills. The Veteran denied other legal problems, but reported he was in jail one night for shoving his wife when he met her in their home with her boyfriend while they were still married. The Veteran admitted to having "blackouts" due to drinking about a fifth of whiskey per day for 7-8 months. He reported that he stopped drinking alcohol when his wife threatened to leave him if he did not stop drinking. The Veteran was seen by his psychologist once again from May 26, 2004 to July 14, 2004, he continued to deny suicidal and homicidal ideations. At his July 2004 session, the Veteran reported that he had a disability hearing, and was feeling "somewhat optimistic about the outcome." He reported feeling "less sad," denied crying spells, was less forgetful, and felt more energetic. The Veteran also reported communicating more with his daughter, and perceived the laughing and joking that he shared with his wife as an indication of positive changes in their relationship. At the Veteran's mental status examination, the psychotherapist reported that the Veteran appeared adequately groomed, appropriately dressed, no retardation or hyperactivity was noted, his speech was coherent, and his mood and affect was congruent. It was also reported that the Veteran showed no delusion, hallucination or other psychotic symptoms, including homicidal or suicidal ideations. In August 2004, the Veteran expressed concerns that he had not heard the results of his disability hearing and said, "it is killing me." He also indicated that the pain in his neck, shoulder and arms had worsened. He complained of middle insomnia, which he attributed to pain as well as the stress of financial concerns. The Veteran reported he took a 1/2- dose of Methadone before bedtime and hydrocodone 3-4 times per day, but not at bedtime. The Veteran reported he also took a 1/2-dose of trazadone at bedtime. The psychologist opined that the Veteran's showed appropriate affect with mostly neutral mood, and indicated no acute distress. In addition, the Veteran reported that his disability claim had been approved, retroactive to June 2001, which also helped improved his mood. Notwithstanding, the Veteran reported feeling "especially worried about Joan and I." He reported that they had been "arguing a lot lately" and that she had informed him that "even if you get straightened out, it might not be enough for us." Likewise, in October 2004, the Veteran's mood was reportedly neutral to euthymic. The Veteran's psychologist opined that his mood and functioning had improved and that there was no indication of acute distress. At his October 2004 session, the psychologist discussed increasing the Methadone to 5mg. At his psychotherapy session, the Veteran reported being less tired during the day and not sweating since getting off the trazadone. He reported fishing and camping, and arguing less with his wife, and having 5-6 hours of sleep at night. Treatment records from February 2005 to November 2005 showed the Veteran continued to suffer from low back pain, as well as pain in his lower extremity. The Veteran denied suicidal and homicidal ideations, and denied alcohol consumption. The Veteran's wife called complaining that she wanted the Veteran in a controlled environment. She reported he was "so doped up" it bothered her. The Veteran's wife also reported that he was "lying, stealing, and at times believed he is a psychic, overly emotional, and at times crying." The Veteran admitted taking 5-6 beers a day for the last seven months, and reported feeling worthless and not doing much all day. The Veteran's wife reported that he had been more verbally abusive and hard to get along. The Veteran was concerned that his wife was going to leave him if he does not get help. He reported that he had been on Methadone for a year and admitted taking less Methadone sometimes. At his June 2005 session, the Veteran reported to the group that things were going better with him and his wife's separation. He also reported he had not been drinking alcohol, and that he took his medication as required. The Veteran reported he felt better being off alcohol and hydrocodone, and admitted he attended AA three times per week. Immediately after the group session, the record indicates that the Veteran informed his psychologist that things were not as good between him and his wife as he had indicated to the group. The Veteran denied he drank alcohol while attending group session at Omaha. He reported his wife and family got angry at him because he was talking to himself at their family function. The Veteran also reported that his wife did not want him to come home until after they had marital counseling, which was scheduled in August 2005. However, the Veteran continued to deny suicidal and homicidal ideations, as well as alcohol use. Similarly, in August 2006, the Veteran reported abstinence from alcohol. However, when he was breathalyzed, he blew .02; however, he denied drinking and said he had used mouthwash. Urinalysis report dated in March 2005 to July 2005 indicate negative for any controlled substance other than the pain medicine that was prescribed for the Veteran. See, e.g., VA Examination, dated in April 2016 The Veteran died in May 2008. The death certificate listed the immediate cause of death as gunshot wound to the chest. It was indicated on the certificate that the death was a suicide. The Board notes that private treatment records from several medical providers proffered that VA should not have continued providing Methadone for the Veteran. Specifically, an April 2009 opinion from Dr. R. H. indicated that the author was not directly involved with the Veteran's care and that the Veteran's history of substance and alcohol abuse "could have contributed to his death" while an October opinion from Dr. T.W. indicated that the use of Methadone in combination with other substances "could result in inappropriate decision making." Likewise, a December opinion from Dr. T. indicated that VA's prescribing of Methadone to the Veteran aggravated his symptoms, exaggerated his suicidal ideations and ultimately led to his death. In addition, a November 2008 statement from Dr. R.L. detailed why he had refused to prescribed Methadone to the Veteran prior to his death. A VA opinion was obtained in April 2009. The 2009 examiner opined that it was "less likely as not that the Methadone caused" an aggravation of the Veteran's symptoms and his suicide, and far more likely that the suicide was due to risk factors other than the methadone. The Board remanded the matter to the RO because the 2009 examiner did not address the proper inquiry in this case, namely, whether the Veteran suffered an additional disability that was the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault, or an event not reasonably foreseeable on the part of VA. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (VA must ensure adequacy of VA examination or opinion if it undertakes to provide one). Likewise, a VA opinion was obtained in January 2015. The VA examiner opined that the prescription of Methadone was appropriate for the Veteran's condition and met the standard of care. The examiner stated that the Veteran was appropriately monitored by urine drug screens and the Veteran cardiac function was appropriately monitored, and that he was appropriately monitored by mental health providers. The 2015 examiner acknowledged that Methadone "should be used with caution" in a patient "with depression and a history of substance abuse." Nonetheless, after review of the records, the examiner opined that the use of Methadone was "not inappropriate or contraindicated." The VA examiner opined that the toxicology report showed "Methadone well within therapeutic range," and further opined that it was less likely than not that VA's prescription of Methadone caused, worsened or resulted in the Veteran's death. A VA opinion was also obtained in April 2016. The VA examiner opined, that improvement in the Veteran's mood and the fact he appeared euthymic or normal, is an example of the close psychological monitoring he had during his treatment at the VA, which according to the examiner, makes the choice to prescribe Methadone in 2004 reasonable. The 2016 examiner further opined that at the time the Veteran was placed on Methadone in 2004 for pain management, it was still considered appropriate to place a patient with a history of depression and/or alcohol abuse if the patient was considered "clinically stable." The examiner pointed to the fact that there were frequent visits and urine drug screens which did not indicate the Veteran was taking substances other than what was prescribed for his pain. He further opined that once the Veteran was considered stable, he no longer had the frequent visits or urine drug screen. In addressing an article submitted by the appellant's attorney entitled "Management of Opioid Therapy for Chronic pain," which indicates that physician "should be especially cautious about prescribing controlled substances" to patients with substance use history, the April 2016 VA examiner reported that the article is from 2010, published years after the Methadone was initiated and after the Veteran had died. The VA examiner further opined that the 2003 article that was in place at the time Methadone was prescribed did not mandate frequent urine drug screens. The VA examiner opined that in 2004 to 2008, it was felt as long as the Veteran was following through with recommendations on abstinence or participating in alcohol treatment or alcohol avoidance programs, it was appropriate to continue his treatment. The examiner stated other contributors to the Veteran's suicide prior to being placed on Methadone included history of substance abuse, his unemployment, financial stress, isolation and most important, his pre-existing long history of depression, and previous suicide ideation and attempts. As noted above, a qualifying death under 38 U.S.C.A. § 1151 (West 2014) requires both that the Veteran's death was (1) caused by VA hospital care, medical or surgical treatment, or examination and (2) that the proximate cause of the Veteran's death was 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 not reasonably foreseeable. Upon review of the record, the Board concludes that the Veteran's death was not caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the Board also concludes that the proximate cause of the Veteran's death 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 hospital care, medical or surgical treatment, or examination; nor was it the result of an event not reasonably foreseeable. Furthermore, the Board concludes, placing significant probative weight on the April 2016 VA Medical Opinion, that it was appropriate to place a patient with depression and /or alcohol abuse on Methadone if the patient was considered "clinically stable." Overall, the Board finds the April 2016 VA opinion to be the most probative evidence of record. The April 2016 opinion weighs against the appellant's claim and there is no alternative persuasive evidence in support of the appellant's claim. The Board has considered the appellant's various statements. However, the most probative competent evidence of record does not support the contention of a relationship between VA treatment and the Veteran's death. The key issues in this case are whether the Veteran's death was caused by VA hospital or medical or surgical treatment, whether the Veteran's death was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in prescribing Methadone; or was the result of an event not reasonably foreseeable, and whether VA failed to diagnose and/or treat a preexisting disease or injury. The Board notes that such matters fall outside the realm of common knowledge of a lay person and the appellant and her representative are not competent to address these issues. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, the April 2016 opinion specifically addressed many of the appellant's contentions. To the extent that any additional remaining contentions from the appellant were not specifically addressed by the April 2016 examiner (or herein), the Board notes that the medical professional reviewed the entire claims file, including the appellant's contentions, in the course of preparing the opinion provided. See, Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board finds the medical opinions of record, based on a complete review of the evidence of record, including the appellant's arguments, to be of substantially greater probative weight than the lay contentions of the appellant and her representatives on such complex medical matters. Finally, the Board notes that in a March 2015 statement, the adequacy of the January 2015 examiner's opinion was questioned by the appellant's attorney. Specifically, the attorney argued that Dr. J.M. training is in osteopathic medicine, with a board certification in family practice. Furthermore, the attorney proffered that VA medical opinions must be "provided by a person who is qualified through education, training or experience" to provide such an opinion. Citing, 38 U.S.C.A. § 3.159 (a) (1); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Essentially, the appellant's attorney argued that "there is no indication of information that Dr. J.M. has the qualification, training, or expertise necessary to provide a medical opinion on the nexus between Mr. [REDACTED]'s suicide and VA's treatment of his chronic pain with progressively increased doses of Methadone. The appellant's attorney stated that Dr. J.M. failed to support his opinion with any scientific or medical sources. The Board has considered these arguments, but upon review, finds that the January 2015 taken with the April 2016 examiner's opinion is adequate. When read as a whole, the Board finds that the VA examiners' opinions adequately discussed the facts of the Veteran's case, addressed the relevant issues, to include addressing specific contentions raised by the appellant, and provided adequate opinions to the requested questions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In reaching the above conclusions, the Board has considered the appellant's, and her representative's arguments. The Board finds the medical opinions of record to be of significantly greater probative value, due to medical professionals presumed greater level of expertise and the complex medical nature of the evidence and opinions involved. In sum, the Board concludes that the Veteran's death was not caused by VA's hospital care, medical or surgical treatment, or examination and additionally that the proximate cause of the Veteran's death 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 hospital care, medical or surgical treatment, or examination; nor was it the result of an event not reasonably foreseeable. The Board further concludes that VA did not fail to diagnose and/or treat a preexisting disease or injury. As a result, the criteria for entitlement to DIC under 38 U.S.C.A. § 1151 have not been met and the claim therefore must be denied. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2014). ORDER Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1151 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs