Citation Nr: 0302932 Decision Date: 02/14/03 Archive Date: 02/24/03 DOCKET NO. 97-13 505A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional cardiac disability as a result of Department of Veterans Affairs (VA) medical treatment. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Ferrandino, Counsel INTRODUCTION The veteran had active service from November 1965 to November 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision from the Department of Veterans Affairs (VA) Nashville, Tennessee Regional Office (RO). In writing in April 2000, the veteran canceled his request for a hearing at the RO before a local hearing officer. This issue was remanded in March 1999 for further development. The case was thereafter returned to the Board. Additionally, by decision of the Board in March 1999, the issue of entitlement to service connection for cardiac disability secondary to treatment for post traumatic stress disorder (PTSD), namely the prescribing of carbamazepine, was denied; as such this issue is no longer on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal on the issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional cardiac disability, as a result of VA medical treatment, has been obtained by the RO. 2. The veteran received VA treatment during a hospitalization from March 1996 to April 1996 and was diagnosed with a cardiac disability at that time. The competent evidence of record does not indicate that that veteran incurred any additional cardiac disability due to the said VA treatment. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional cardiac disability as a result of VA medical treatment have not been met. 38 U.S.C.A. § 1151 (West 1991); 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.358 (a)-(c) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, after reviewing the record, the Board is satisfied that all relevant facts have been properly developed as to the claim for entitlement to § 1151 benefits. Thus, no further assistance to the veteran is required to comply with the duty to assist him as to this issue. See 38 U.S.C.A. § 5103A (West 2002). In this regard there has been notice as to information needed, VA treatment records have been obtained, VA examinations have been provided, and there have been a rating decision and a statement of the case sent to the veteran. There is no indication that there is additional information on file that would lead to a different outcome in this claim. All pertinent notice has been provided in the documents sent to the veteran. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2002). These regulations provide no additional duties, are not more favorable to the veteran than the statute, and are satisfied as all appropriate notice and development has otherwise been accomplished as discussed elsewhere. The veteran and his representative through letters and statements of the case with supplements thereto, have been notified as to evidence and information necessary to substantiate the claim. The discussions in the rating decision, the statement of the case (SOC), and letters sent to the veteran collectively informed him of what evidence he must obtain and which evidence VA would seek to obtain, as required by section 5103(a), as amended by the VCAA, and by § 3.159(b), as amended by 66 Fed. Reg. at 45,630. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Further, it appears that all pertinent evidence has been obtained. Therefore, there is no evidence that there are additional records that should or could be obtained, nor is there evidence that other development is necessary. Thus, no further assistance to the veteran is required to comply with the duty to assist him. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2002). It is noted that some VA treatment records requested in the March 1999 Board remand were not obtained. However, in light of the VA treatment records of record as well as the several VA examinations and opinions addressing the issue, the Board finds there is sufficient evidence to adequately decide the veteran's claim. The records requested were additional VA treatment records from prior to the March 1996 to April 1996 VA hospitalization at issue. While these records were not obtained, the records in the file and the veteran's reported history are sufficient evidence. Further, all records from the veteran's March 1996 to April 1996 hospitalization are of record as well as evidence of the current status of any cardiac disability. Therefore, the evidence of record is adequate and provides a full picture of the veteran's cardiac disability, and as such any duty pursuant to the Board remand to obtain records in this regard has been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, it should be pointed out that since the veteran's § 1151 benefits claim in question was filed in September 1996, prior to October 1, 1997, the amendments to 38 U.S.C.A. § 1151 implemented by section 422(a) of Pub. L. No. 104-204, the Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1997, 110 Stat. 2874, 2926 (1996) are inapplicable. See VA O.G.C. Prec. Op. No. 40-97 (Dec. 31, 1997). The Board notes that on December 12, 1994, the United States Supreme Court issued Brown v. Gardner, 513 U.S. 115 (1994), 115 S. Ct. 552 (1994), affirmed decisions of the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (the Veterans Claims Court) and the Federal Court of Appeals, which had essentially found that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection and that elements of fault or negligence were not a valid part of the implementing regulation. See Brown v. Gardner, 513 U.S. 115 (1994). In light of the Supreme Court's decision, the VA amended 38 C.F.R. § 3.358(c), the regulation implementing 38 U.S.C.A. § 1151, to eliminate the requirement of fault. Thus, where a causal connection existed and no willful misconduct was shown, and the additional disability did not fall into one of the listed exceptions, the additional disability would be compensated as if service connected. Id. Thereafter, the Secretary of the VA sought an opinion from the Attorney General as to the full extent to which benefits involving claims under 38 U.S.C.A. § 1151 were authorized under the Supreme Court's decision. Subsequently, a January 20, 1995, memorandum opinion from the Office of the Attorney General advised that as to required "causal connection", the Supreme Court had addressed three potential exclusions from coverage under 38 U.S.C.A. § 1151. The opinion explained that: Exclusion of the first two classes of cases would flow from the absence of the causal connection itself: if the intended connection is limited to "proximate causation"...then "remote consequences" of treatment may be excluded... and "incidents of a disease's or injury's natural progression" properly are excluded by VA regulations because VA action "is not the cause of the disability in these situations,"....[T]he third exclusion... unlike the first two, does not turn on the absence of a causal link between VA treatment and the injury in question. Rather, it seems to be premised on some theory of consent...What the Court...appears to have in mind...is not a naturally termed..."risk" at all, but rather the certainty or near-certainty that an intended consequence of consensual conduct will materialize. In pertinent part, 38 U.S.C.A. § 1151 (in effect prior to October 1, 1997) provides that: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment...and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability... disability or death compensation...shall be awarded in the same manner as if such disability, aggravation, or death were service- connected. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3), remained valid after Gardner. See Brown, at 556 n.3. Subsequently, VA promulgated an amended rule 38 C.F.R. § 3.358(c). The provisions of amended 38 C.F.R. § 3.358, the regulation implementing that statute, provide, in pertinent part: Section (b) Additional disability. In determining that additional disability exists, the following considerations will govern: (1) The beneficiary'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.... (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. ( 2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the...hospitalization, etc., was authorized. Section (c) Cause. In determining whether such additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of...hospitalization, medical or surgical treatment... 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...hospitalization, medical or surgical treatment... Section (c)(3) 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. This amended final rule does not affect the outcome of this case, since this rule deletes the fault or accident requirement in section (c)(3), but does not alter the requirement in sections (c)(1) and (2) that additional disability is "proximately due" to VA action. As the Board will explain, the competent evidence of record reflects that any additional cardiac disability is unrelated to VA treatment. Therefore, sections (c)(1) and (2), not (c)(3), are controlling with respect to the facts of this case. In this case, the veteran is claiming that because his cardiac disability developed during a VA hospitalization, that it must have been proximately due to the treatment he received at that time. The evidence in this case shows that on a VA chest x-ray in May 1983, the heart was mildly prominent in size but the overall heart size was normal. The opinion was normal chest. A VA chest x-ray from April 1992 shows that in comparison to the prior study of May 1983, the heart was slightly enlarged. The impression was mild cardiomegaly and questionable presence of large bullae anteriorly on the lateral film. VA hospital records from March 1996 to April 1996 show the veteran was treated for service connected PTSD. During the hospitalization, the veteran started noticing some increased shortness of breath, orthopnea, paroxysmal nocturnal dyspnea, and edema. He was subsequently transferred to the medical service. The veteran reported he had not had any episodes of congestive heart failure in the past. He denied any recent use of cocaine or other illicit drugs, although he had used these in the past. He admitted to moderate ethanol intake of less than four beers per day but not in the past two weeks. He had a viral upper respiratory infection two to three weeks prior to admission, associated with some myalgia and low grade temperature. He denied any chest discomfort over the past several weeks. It was noted that a chest x-ray in November 1995 was without evidence of congestive heart failure. The diagnosis included dilated cardiomyopathy. On a VA examination in October 1996, the veteran reported no known history of cardiac disease prior to his VA hospitalization in March 1996 to April 1996, where he developed symptoms of congestive heart failure. The diagnosis of dilated cardiomyopathy was made. It was mentioned at that time that he had a viral upper respiratory tract infection about two to three weeks before admission. In the distant past, he apparently had a history of fairly heavy alcohol abuse, but had drank fairly moderately in recent years. He also had a past history of substance abuse, but none recently. The examiner had seen the veteran several times since April 1996. A chest x-ray report from April 1996 indicated a borderline heart size but no evidence of congestive failure was seen. A current x-ray indicated normal size heart with some emphysematous changes noted. The diagnoses after examination were dilated cardiomyopathy with compensated congestive heart failure and ventricular ectopy secondary to the first diagnosis. The discussion related to medication for PTSD and any relationship to cardiomyopathy. It was additionally discussed that one of the most common causes of cardiomyopathy unrelated to ischemic heart disease was as a reaction to viral infections. Cardiomyopathy could also be caused by heavy alcohol abuse, however, it did not sound as if the veteran's alcohol abuse had been of such a magnitude to have caused this. It was probably not possible to determine precisely what caused the veteran's cardiomyopathy but the viral infection would probably be a more likely cause than medication for PTSD. On a VA examination in August 1999, the veteran reported no problems with his heart until 1996, when he started having symptoms of dizziness, some vomiting, edema, and some tenderness to touch of the thorax and was diagnosed with cardiomyopathy. The diagnosis after examination was cardiomyopathy with congestive heart failure. On a VA examination in October 1999, it was noted that the claims file was reviewed. According to the claims file, the veteran began to have some cardiac symptoms of congestive heart failure while hospitalized in 1996. He was found to have cardiomyopathy at that time. The review of medical records did not show any cardiac symptoms prior to 1996, with the exception of possible symptoms three to four weeks prior the hospitalization in 1996 when the veteran was diagnosed with a upper respiratory infection and could have had some of the same symptoms at that time of cardiomyopathy although this could not definitely be concluded. Therefore there was no indication that the veteran had any cardiac problems prior to this with the exception of an x-ray done in April 1992 that did indicate a mild cardiomegaly with a cardiac to thoracic ration of 17:33 and two large bullae anteriorly. For the current manifestations of any cardiac disorder, refer to the examination from August 1999. The veteran was currently being treated for a cardiac disability. It was determined that it was highly unlikely that the veteran developed any additional identifiable cardiac disabilities due to any VA treatment during the hospitalization from March 1996 to April 1996. It was actually more likely that the veteran's cardiomyopathy could have been alcohol-induced or viral-induced. The possibility of medication for PTSD as a cause was improbable. In view of this, it was not found that there were any specific additional disabilities caused by any particular VA treatment that the veteran received. Therefore, it has not been shown by competent evidence that any additional cardiac disability resulted from the March 1996 to April 1996 VA hospitalization for PTSD. While the Board has considered the veteran's statements and contentions, they do not constitute competent evidence with respect to medical causation, diagnosis, and treatment. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, since the credible, competent evidence of record indicates that additional cardiac disability did not result from the VA hospitalization in question, the veteran's § 1151 claim is denied. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(a)- (c). ORDER Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional cardiac disability, as a result of VA medical treatment, is denied. MICHAEL D. LYON 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.