Citation Nr: 0209465 Decision Date: 08/08/02 Archive Date: 08/21/02 DOCKET NO. 98-19 590A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to death compensation benefits pursuant to 38 U.S.C.A. § 1151 (West 1991 & Supp. 2002 for the cause of the veteran's death based on VA medical treatment. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had recognized service from January 1944 to January 1946 and from April 1951 to April 8, 1955. His separation for the period of service from April 15, 1955 to November 15, 1955 was determined to have been under other than honorable conditions. This matter is on appeal to the Board of Veterans' Appeals Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board in June 2000 remanded the case to the RO for further development. The RO recently returned the case to the Board. FINDING OF FACT The veteran's death is not shown to have been the result of VA medical treatment, reasonably related thereto or an unintended consequence of VA medical treatment. CONCLUSION OF LAW The criteria for entitlement to death compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 based on VA medical treatment have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 1991 & Supp. 2002); 38 C.F.R. § 3.358 (2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a)). REASONS AND BASES FOR FINDING AND CONCLUSION Factual background The record shows that the veteran died at a VA medical facility in August 1991 and that the death certificate, as amended, certified the cause of death as hypotension, due to gastrointestinal bleed from hepatic failure secondary to chronic hepatitis. The original certification was that the cause of death resulted from hypotension, due to gastrointestinal bleed due to hepatic failure due to alcoholism. Hepatitis B was listed as an other significant condition contributing to death but unrelated to the certified cause. No autopsy or biopsy was performed. The service medical records are pertinently unremarkable, as are those of VA medical treatment through the early 1980's for any disorder listed on the death certificate. He had many VA hospitalizations prior to August 1984 that are also pertinently unremarkable but document alcoholism. The veteran wrote in an undated letter on file that a month after the 1984 surgery, he came down with hepatitis B, that VA physicians verified this and that he transferred it to his wife, which her doctor would verify. The appellant recalled in 1995 that that he did not have hepatitis prior to the surgery, but that it was not diagnosed until 1986, and that she was diagnosed with hepatitis at that time. From August 23, 1984 to October 10, 1984, the veteran was admitted to the Wadsworth VA domiciliary for radiation therapy after an uncomplicated laryngectomy and right radical neck dissection performed at the medical facility on August 2. The summary of the domiciliary admission does not mention hepatitis or blood transfusion. The surgical report shows the procedure on August 2, took several hours and that the estimated blood loss was 1650 ccs. VA records show in September 1986 the veteran was suspected of having chronic persistent hepatitis versus chronic carrier state. It was noted he had serological abnormalities for more than six months. He had relatively normal liver function tests with persistent antigenemia. The clinician noted in the record that in February 1986 his spouse was found to have hepatitis and he was found positive for hepatitis B. The physician reported he was transfused in 1984 with a radical neck dissection, and had tattoos but no intravenous drug history. In late 1986 a peri-operative nursing record noted hepatitis "years ago". The preanesthetic summary noted hepatitis. A peri-operative nursing record during VA hospitalization in January 1988 mentioned hepatitis in 1985. The preanesthetic summary noted a history of hepatitis type B about four years. An undated record lists various medications that included Dilantin for a seizure disorder. The record shows that VA hospitalized the veteran several times in 1991, and that he eventually died in late August 1991 while an inpatient. The record of his admission from June 12 to July 27, 1991 shows that he was reported to have chronic hepatitis B secondary to a blood transfusion in 1984. The report of this admission and the next one early in August 1991 showed diagnoses of cirrhosis of the liver, hepatic encephalopathy and end stage cirrhosis. The terminal admission summary noted he had a history of liver failure, alcoholic cirrhosis and hepatitis B. In March 1992 a physician at Frazier Mountain Community Health Center reported that a review of their records showed the veteran had been a patient from 1980 to 1989, and that hepatitis B was diagnosed in June 1986, apparently at VA. According to the narrative, VA may have done a work up earlier, possibly as early as 1984, but that this was not certain. The physician stated that "the VA records he had" gave no indication of a blood transfusion during surgeries. It was noted repeat blood laboratory analysis in August 1986 indicated chronic infection. Other records from this facility show the appellant was seen in early 1986 and advised that the veteran needed a work up for hepatitis. The appellant argued in her appeal filed in 1998 that it was hard to believe that the amount of blood loss reported during the 1984 surgery would not have required a transfusion. She also asserted that the veteran was given phenytoin that was implicated in hepatitis. She contended that he had a blood transfusion that was overlooked or omitted in the operative report. Records received as a result of the Board remand included VA records from the late 1980's that were essentially duplicates of reports previously of record. Requests were made to the Frazier Mountain facility and the Henry Mayo Hospital in 2000. In 2001 the Henry Mayo facility provided records from 1986 through 1990 that mentioned seizures in September 1990 reportedly having occurred after the veteran had stopped drinking a year earlier. That report noted a history of hepatitis. The Frazier Mountain facility in 2001 indicated that reports were purged after 10 years. The appellant provided information from the American Liver Foundation regarding chronic hepatitis that mentioned phenytoin could cause chronic hepatitis. She also provided a copy of a clinical record from the Frazier Mountain facility with entries dated from April to August 1986. These show that hepatitis may have been contracted from dental work she had. According to the report it was also questioned whether she had contracted it from the veteran. She wrote in 2001 of her recollection of conversations about a transfusion during the 1984 surgery, her initial symptoms of hepatitis and the effects of VA treatment he received for carcinoma. She wrote that he did not drink after 1981. A VA physician in late 2001 stated that the claims file and VA medical facility records that were available were reviewed. In responding to the questions posed in the Board remand, the physician stated that the chart review did not find any documentation that the veteran received a blood transfusion or documentation of a transfusion reaction. The examiner noted that information obtained during his hospitalization in late 1981 was consistent with liver disease (cirrhosis). The physician also noted that tattooing did present some risk of hepatitis. The physician stated that there was no association of phenytoin with hepatitis B. The VA physician opined that there was no likelihood that the veteran developed hepatitis B either as a result of transfusion, of which there was no evidence, or phenytoin use. It was the physician's opinion that it would be speculative to associate it with tattooing or transmission from the appellant. Rather it was the physician's opinion that most likely the veteran's liver problems were more secondary to lifestyle choices he made (chronic overindulgence in alcohol) than from any other etiology. The physician reasoned that long before his surgery in 1984, sophisticated laboratory tests for blood donors and banked blood had essentially eliminated hepatitis B as a transfusion risk. Further, there was no economy to speculating regarding phenytoin when there was ample evidence that the veteran was an abusive drinker who showed evidence of hepatic dysfunction at least four years prior to surgery. The appellant early in 2002 repeated her recollection that the veteran did not drink after 1981, that he had a transfusion in 1984 and that he had tattooing during military service. In another letter she also disputed the possibility that she could have transferred hepatitis to the veteran and again disputed the conclusions from the recent VA medical review. Criteria In Gardner v. Derwinski, the United States Court of Appeals for Veterans Claims (CAVC) declared invalid the provisions of 38 C.F.R. § 3.358(c)(3) (1994), requiring VA fault or accident prior to recovery under 38 C.F.R. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), add'd sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), Brown v. Gardner, 115 S.Ct. 552 (1994). The United States Supreme Court held that VA is not authorized by § 1151 to exclude from compensation the "contemplated or foreseeable" results of non negligent medical treatment, as was provided by 38 C.F.R. § 3.358(c)(3). Subsequently, the VA Secretary sought an opinion from the Attorney General as to the scope of the exclusion from § 1151 coverage contemplated by the Supreme Court's decision. In a memorandum to the Secretary dated January 20, 1995, the Deputy Assistant Attorney General, Office of the Legal Counsel, U.S. Department of Justice, indicated that the Supreme Court's holding is read most accurately as excluding from coverage under § 1151 only those injuries that are "certain, or perhaps the very nearly certain, result of proper medical treatment." In March 1995, amended regulations were published deleting the fault or accident requirement of 38 C.F.R. § 3.358, in order to conform the regulations to the Supreme Court's decision. As provided under 38 C.F.R. § 3.358(a), where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. 38 C.F.R. § 3.358(b). In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. When the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, it will bar him (or her) from receipt of compensation hereunder except in the case of incompetent veterans. 38 C.F.R. § 3.358(c). In pertinent part, 38 U.S.C.A. § 1151 mandates that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment...awarded under any of the laws administered by the Secretary of VA, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of the veteran, disability or death compensation...shall be awarded in the same manner as if such disability, aggravation or death were service-connected. However, effective October 1, 1997, 38 U.S.C.A. § 1151, relating to benefits for persons disabled by treatment or vocational rehabilitation, was amended by Congress. See section 422(a) of Pub. L. No. 104-204. The purpose of the amendment is, in effect, to overrule the Supreme Court's decision in the Gardner case, which held that no showing of negligence is necessary for recovery under section 1151. In pertinent part, § 1151 is amended as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. However, these amendments apply only to claims filed on or after the effective date of the statute, October 1, 1997. Since the veteran's appeal was pending prior to this date, it continues to be subject to review under the prior statutory language and interpretation. VAOPGCPREC 40-97. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis Duty to Assist There have been changes in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West Supp. 2001). Among other things, this law redefines the obligations of VA with respect to the duty to assist and supersedes the decision of the CAVC in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order). The issue under consideration is not a purely legal question that the VCAA would not affect. See for example Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board has not overlooked the recently published VA regulations that implement the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a)). However, these provisions do not provide any rights other than those provided by the VCAA. The record shows that the RO notified the appellant of the evidence considered regarding the pertinent issue and of the reasoning for the rating determinations that addressed the claim. The appellant was afforded the opportunity to submit arguments in support of the claim, and in fact did so. The appellant was given ample opportunity to identify evidence and she recently indicated that she had no additional evidence to submit. She was informed of the VCAA provisions early in 2002 in a comprehensive supplemental statement of the case. Thus, in light of his statements and the development completed at the RO, the Board finds that the relevant evidence available for an equitable resolution of the appellant's claim has been identified and obtained. The Board finds that VA can provide no further assistance that would aid in substantiating the claim as the issue essentially turns on the interpretation of evidence in a record that appears to be complete. See Dixon v, Gober, 14 Vet. App. 168, 173 (2000); Davis v. West, 13 Vet. App. 178, 184 (1999); Earle v. Brown, 6 Vet. App. 558, 562 (1994). The Board finds, therefore, that VA has fulfilled its obligation to the appellant, informing her of the reasoning against the claim and providing the pertinent VA regulations. The RO made a conscientious effort to obtain pertinent medical records and extensive records of medical treatment were received in response to specific requests. Thus any reports not obtained regarding the August 1984 surgery are likely not available. The Board asked that the physician who completed the amended death certificate explain the reasoning for the changes. The RO early in 2001 sought to comply with this request when it directed a letter to a VA medical center. No reply was received to indicate that a response was forthcoming or that the physician was available. In any event the VA medical opinion responded to the questions posed in the Board remand and in so doing made an explanation regarding the death certificate changes unnecessary as will be discussed below. The Board in remanding the case sought to ensure that the appellant was afforded due process in view of the information on file. The Board in 2000 asked for and received a VA medical opinion. In obtaining this opinion, the Board in effect recognized the medical treatment issue in the case. The Board observes that the RO made a diligent effort to obtain an adequate record. The RO did complete the actions requested. The Board must observe that the VA opinion is comprehensive and took into account the veteran's medical history and pertinent treatment history. It appears the examiner responded to the specific questions set forth in the Board request. In view of the development that has been completed, the Board is left with the belief that the record is sufficient for an informed evaluation, without any potential prejudice being called to its attention. Stegall v. West, 11 Vet. App. 268 (1998); Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Death Compensation under 38 U.S.C.A. § 1151 Initially, the Board observes that continuance or natural progress or willful misconduct which would bar any entitlement does not appear to be a relevant consideration that alone would negate a favorable determination. However, the Board finds that the medical evidence preponderates against the claim for compensation for the veteran's death as a result of VA medical treatment, as it does not offer a basis supporting that his death was as likely than not linked to VA treatment as claimed. The Board will not overlook information in the record that viewed liberally tends to favor the appellant. At the time of the VA surgery in 1984 there was no reference to any transfusion in the operative report and as the VA medical opinion noted no evidence of any pertinent postoperative event. Further, the record from the Frazier Mountain facility early in 1986 did not indicate there was evidence of a transfusion and the physician who reviewed records now unavailable did not confirm it. However, the recent VA medical opinion established that the veteran had liver impairment likely linked to alcohol abuse prior to that surgery. There is an extensive record of VA treatment that confirms preexisting alcoholism. The VA medical specialist gave consideration to the significance of the hepatitis and the claimed link to VA treatment. The opinion offered reasoning against VA treatment in 1984 as a material factor in the veteran's death based upon facts pertinent to the case. The VA physician stated the available evidence had been reviewed and that it showed no evidence of a transfusion, which was also apparent from the records reviewed at the Frazier Mountain facility earlier. From the Frazier Mountain records it would seem there was uncertainty as to the sources of the veteran's hepatitis B. There is no competent evidence to dispute the rationale supporting the conclusions reached that the liver disease was linked to alcoholism rather than any VA medical treatment. In any event, the VA opinion found it unlikely that hepatitis B was contracted at VA in 1984 in view of screening procedures then in effect. No competent opinion has disputed this conclusion. In summary, the record shows clearly that the veteran had such chronic failure after treatment administered by VA and coexisting with his death. What none of the probative medical evidence establishes is a nexus between underlying hepatitis B coinciding with VA treatment in 1984 and the veteran's death. The appellant's often repeated argument of a nexus to medication VA prescribed found some support in literature she submitted. However, that statement did not discuss with a degree of certainty the facts specific to the veteran's case. It is general and when contrasted with the VA medical opinion offers no basis to find a link between the hepatitis B as a result of VA medical treatment other than the surgery in 1984 and the veteran's death. The VA physician in 2001 did address the situation specific to the veteran's case in concluding that no link was demonstrated with hepatitis B and phenytoin. The persuasive opinion against a link between VA medical treatment as claimed and hepatitis B renders clarification of the death certificate amendment unnecessary. The record does not link the fatal disease process to VA treatment, so whether hepatitis B was the underlying cause or alcoholism is not a pertinent element. The Board notes the medical record in 1990 showed the veteran had been a problem drinker until a year earlier with recent seizures, which conflicts materially with the appellant's claim of his abstinence since 1981, and significantly diminishes her credibility. The VA opinion is comprehensive and offers probative evidence in the matter under consideration. It was made by a physician with relevant competence. However, the VA opinion included review of records and the physician offered a well reasoned analysis against compensation. There is no contemporaneous competent opinion to the contrary so as to call reasonably into question the VA opinion. As with any piece of evidence, the credibility and weight to be attached to the VA expert opinion and others of record is an adjudication determination. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is well established that lay observation is not sufficient to establish a medical diagnosis or causation. In summary, the VA medical specialist carefully reviewed the facts specific to the veteran's case and highlighted the evidence found to support a finding against a relationship between the hepatitis B and medication administered by VA or surgery in 1984 and the veteran's death. There has been no opinion offered to contradict the conclusion of an unlikely link between VA treatment and the veteran's death. Although the appellant in her response argued with the conclusion reached in the VA opinion, the opinion read carefully offers several plausibly based arguments against the claim which were carefully summarized. Therefore, the Board finds that the VA opinion is entitled to significant probative weight because of its fact specific analysis and its rationale, which was well reasoned. The Board has commented as to why it does not find the evidence of sufficient probative value to find in favor of the appellant. The basic contention of transfusion in 1984 with hepatitis resulting is not confirmed. Thus, the references to it are viewed as being based on history provided and as such this an assumed fact not shown. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Grover v. West, 12 Vet. App. 109, 112 (1999), affirming LeShore v. Brown, 8 Vet. App. 406 (1995). The specific guidelines for compensation in the veteran's case, found at § 3.358, which set forth the essential elements, are not met with regard to the veteran's death. The Board finds that the competent evidence does preponderate against the claim, and the claim should be denied. Struck v. Brown, 9 Vet. App. 145, 155 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995). ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the cause of the veteran's death based on VA medical treatment is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.