Citation Nr: 0331859 Decision Date: 11/17/03 Archive Date: 11/25/03 DOCKET NO. 00-14 601 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for heart attack or stroke, claimed as due to VA medical treatment. 2. Entitlement to an increase in a 30 percent rating for bronchial asthma. 3. Entitlement to a rating of total disability based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from February 1942 to October 1944. This matter comes to the Board of Veterans' Appeals (Board) partly from a May 1999 RO decision which denied compensation under 38 U.S.C.A. § 1151 for heart attack or stroke, claimed as due to VA medical treatment. The veteran also appeals a July 2000 RO decision which denied an increase in a 30 percent rating for service-connected bronchial asthma, and also denied a TDIU rating. In May 2001, the Board remanded the case for additional action. In August 2003, the Board granted a request to advance the case on the Board's docket. The present Board decision addresses the claim for compensation under 38 U.S.C.A. § 1151 for heart attack or stroke, and the claim for an increased rating for bronchial asthma. The issue of entitlement to a TDIU rating is the subject of the remand at the end of the Board decision. FINDINGS OF FACT 1. VA treatment has not resulted in the veteran having additional disability involving heart attack or stroke. 2. The veteran's bronchial asthma is manifested by impaired breathing, and results on pulmonary function studies include post-bronchodilator FEV-1 of 41 percent of predicted. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C.A. § 1151 for heart attack or stroke, claimed as due to VA medical treatment, are not met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. §§ 3.358, 3.800 (2003). 2. The criteria for a 60 percent rating for bronchial asthma are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims compensation under 38 U.S.C.A. § 1151 for heart attack and stroke, claimed as due to VA medical treatment. He also claims an increase in a 30 percent rating for his service-connected bronchial asthma. Through correspondence, rating decisions, statements of the case, supplemental statements of the case, and the Board's prior remand, the VA has notified the veteran with regard to the evidence necessary to substantiate these claims, and of his and the VA's mutual responsibilities for obtaining evidence. Relevant identified medical records have been obtained, and VA examinations have been provided. The Board finds that the notice and duty to assist provisions of the law have been satisfied. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Compensation under 38 U.S.C.A. § 1151 for heart attack or stroke The evidence shows that the World War II veteran is service- connected for bronchial asthma. Many years after service he developed cardiovascular disease, including hypertension and arteriosclerotic heart disease. A claim for secondary service connection for cardiovascular disease (as allegedly due to bronchial asthma), and an application to reopen such claim, has been denied in prior final RO and Board decisions, and such matter is not now on appeal. The veteran now claims compensation under 38 U.S.C.A. § 1151 for heart attack and stroke, alleging he has such problems and that they are due to VA medical treatment. The law providing compensation under 38 U.S.C.A. § 1151 was revised, effective October 1, 1997, and the new version of the law is more restrictive than the old version (the new law essentially requires a showing of fault or negligence by the VA in providing medical treatment). However, the new law does not apply in the present case, as the veteran's claim has been pending since before the change in the law. VAOPGCPREC 40-97. The Board has applied the version of 38 U.S.C.A. § 1151 (and the related regulations, 38 C.F.R. §§ 3.358, 3.800) in effect prior to the change. The version of the law and regulations applicable to the present case provides that where a veteran suffers disease or injury, or the aggravation of an existing disease or injury, as the result of VA examination, medical or surgical treatment, or hospitalization, and such results in additional disability, compensation shall be awarded in the same manner as if the disability were service-connected. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. §§ 3.358, 3.800 (2003). In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim is based will be compared with the subsequent physical condition resulting from the disease or injury. 38 C.F.R. § 3.358(b)(1). The regulation further provides, in part, that benefits will not be payable for the continuance or natural progress of disease or injury for which VA treatment is authorized. 38 C.F.R. § 3.358(b)(2). 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 VA treatment, 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. 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 treatment. Benefits are 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. 38 C.F.R. § 3.358(c). For a claimant to prevail in a claim under the old version of 38 U.S.C.A. § 1151 and related regulations (which are applicable to the present case), it is not required that there be a showing of negligence or fault on the part of the VA, yet it must be shown that disability in fact resulted from VA treatment, was not a necessary consequence of VA treatment, and was not the result of natural progress of medical condition. The veteran asserts that the medication Verapamil was prescribed him by VA in 1992, subsequent to which, after taking only one capsule, he suffered a "stroke". On a separate submission, he clarifies that his taking of the prescribed Verapamil merely almost produced a stroke and possible heart attack. He additionally states that although he had been taking Theophylline for years as prescribed by VA, such medication was taken away by two VA home care nurses who worked under the supervision of a VA physician who, however, the veteran never saw. He asserts that shortly thereafter, on either May 29 or June 3, 1997, the medication Isosorbide Dinitrate ("Isordil" being the brand name) was prescribed him by VA. He maintains that, when he objected that he had never used Isordil, he was told that such medication would help him. He says that after initially taking such medication on the morning of June 5, 1997, he became disoriented approximately one hour later and fell to his kitchen floor, sustaining a head abrasion and, in addition, immediately thereafter his pacemaker did not function properly. He contends that the VA improperly prescribing him the medication Verapamil as well as discontinuing his Theophylline in favor of Isordil. In April 1995, the veteran submitted a newspaper article indicating that certain hypertension drugs, including Verapamil, may actually increase the risk of a heart attack. VA treatment reports, dated from 1990 to 2002, from the VA Medical Center in Bay Pines, Florida, reflect that the veteran's prescribed medications at that time included Theophylline and Verapamil. A report pertaining to his hospitalization at a VA facility in October 1992 makes no reference to any cardiac or cerebrovascular event. The report noted that he was admitted for evaluation with complaints of dizziness and near syncope. He was discharged with diagnoses of atypical chest pain, sinus bradycardia, diabetes mellitus, type II, chronic obstructive pulmonary disease, and history of carcinoma of the prostate. The veteran is shown to have still been taking Verapamil in early 1993 and, when he was seen for VA outpatient treatment in April 1994, he reportedly denied having any history of either heart attack (myocardial infarction) or stroke (cerebrovascular accident). Thereafter, a report pertaining to VA treatment rendered the veteran on January 30, 1995, five days after he either started or resumed taking Verapamil, reflects that he became dizzy earlier in the day while shopping. He also developed left-sided numbness and weakness. His Verapamil was at that point discontinued. Findings on physical examination included an ability to walk. A transient ischemic attack was apparently suspected. A report pertaining to the veteran's hospitalization at a VA facility in November-December 1995 reflects that, following tests including serial EKGs, which were administered in response to earlier diagnostic findings from a pacemaker clinic including new T wave reversions, an acute myocardial infarction was ruled out. Thereafter, a report pertaining to VA outpatient treatment rendered the veteran in January 1996 reflects a recorded past history which included cerebrovascular accident. A hospitalization report, dated in June 1997, noted that the veteran's prescribed medications included Isordil. At 7:50 AM on the morning on June 5, 1997, the veteran was brought to a VA facility by his daughter after having become dizzy earlier that morning after having taken his medicine and having passed out and fallen to the floor, striking his head. He was noted to have recently been prescribed Isordil in response to angina. He was found to have an abrasion on his scalp. Following his formal admission (on which the diagnoses included no cerebrovascular accidents), it was noted that the veteran's hypertension had been exacerbated by the Isordil. His pacemaker was rechecked and adjusted to increase his heart rate, subsequent to which the veteran felt better. His discharge medications included Theophylline. A medical opinion, dated in April 1998, was received from a VA physician, J. Frutchey, M.D. Dr. Frutchey noted that he had reviewed the veteran's treatment records, with a special emphasis to the events of early June 1997. He noted that the veteran had been followed by Home Based Primary Care since February 1997, and was visited regularly by nursing staff with consultation by Dr. Cooper. He complained of chest tightness and pressure. He had multiple risk factors for coronary artery disease and it was likely that he was having angina. He had used nitroglycerin in the past, but did not like to take it because of headaches. He also had a history of labile hypertension and sporadic episodes of hypotension. A nurse reviewed the case with Dr. Cooper, and a low dose of Isordil (an oral form of nitroglycerin) was ordered. Nitrates such as Isordil are considered to be the very first line of therapy for coronary artery disease. In discussing whether the Isordil was properly prescribed, taken and administered, Dr. Frutchey stated that he believed that it was likely that the patient was having symptoms consistent with coronary artery disease and that the Isordil was prescribed in an appropriately low dose considering the patient's history. The doctor said that, from the record, it is clear that the veteran's spouse was uncooperative with follow-up education and instructions as given by the nurse over the phone. The doctor commented that he could not make any statement as to whether the medication was properly taken or administered by patient at home. Asked if the veteran's pacemaker could be affected by the drug, Dr. Frutchey noted that since the pacemaker is a solid state electronic device, it could not be affected by the medication. It was noted that, as it turned out on admission to the hospital, the settings for the pacemaker were in need of adjustment and the rate was too slow. The doctor commented that these settings can only be changed through specialized electronics and could not have been affected by the medication or the patient's fall. After review of the entire record, including the VA medical opinion, the Board notes that the weight of the evidence esablishes that treatment provided to the veteran by the VA, including prescribing and adjusting certain drugs, did not lead to any additional disability involving heart attack or stroke. Although the veteran contends that he incurred heart attack or stroke as a result of VA treatment, he has not presented any medical evidence to that effect, and as a layman he is not competent to provide an opinion on diagnosis or etiology of a disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As it is not shown that the veteran has diability involving heart attack or stroke from VA treatment, the criteria for compensation under 38 U.S.C.A. § 1151 are not met. The preponderance of the evidence is against the claim for compensation under 38 U.S.C.A. § 1151; thus the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Increased rating for bronchial asthma Disability evaluations are determined by the application of the VA's schedule for rating disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the different disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In rating a disability, the entire history must be borne in mind. However, in a claim for an increased rating, the more recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's service-connected bronchial asthma is currently rated by the RO as 30 percent disabling under Diagnostic Code 6602. Under this rating code, a 30 percent rating is assigned where forced expiratory volume in one second (FEV-1) is 56 to 70 percent of predicted value; or the ratio of FEV-1 to forced vital capacity (FVC) is 56 to 70 percent; or there is daily inhalation or oral bronchodilator therapy; or there is use of inhalation anti-inflammatory medication. A 60 percent evaluation is assigned for FEV-1 of 40 to 55 percent of predicted; or FEV-1/FVC is 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is assigned for where FEV-1 is less that 40 percent predicted; or the FEV-1/FVC is less than 40 percent; or more than one attack per week with episodes of respiratory failure; or which requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno- suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. After review of all the evidence, the Board finds that the veteran's bronchial asthma warrants an increased rating of 60 percent. His most recent VA respiratory examination, performed in June 2000, reported symptoms of cough, wheezing, and occasional sputum production. He reported treatment with a Combivent metered-dose inhaler four times a day and a beclomethasone metered-dose inhaler twice a day. Pulmonary function test revealed pre-bronchodilator findings of FVC of 45 percent of predicted, FEV1 of 34 percent of predicted, and FEV-1/FVC of 74 percent. Post-bronchodilator findings were FVC 51 percent predicted, FEV-1 of 41 percent predicted, and FEV1/FVC of 80 percent. The report concluded with a diagnosis of asthma, with pulmonary function tests showing a moderate to severe obstructive pattern. Applying the results of pulmonary function tests to Diagnostic Code 6602, particularly the post-bronchodilator FEV-1 of 41 percent predicted, indicates that the veteran's bronchial asthma is now 60 percent disabling. Thus, an increased rating to 60 percent for bronchial asthma is granted. The benefit-of-the-doubt rule, 38 U.S.C.A. § 5107(b), has been considered in granting this benefit. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for heart attack or stroke, claimed to be due to VA medical treatment, is denied. A higher rating of 60 percent for bronchial asthma is granted. REMAND The remaining issue on appeal is entitlement to a TDIU rating. As noted above, the Board has granted an increased rating of 60 percent for the veteran's service-connected bronchial asthma. Accordingly, he now meets the schedular requirements for a TDIU rating pursuant to 38 C.F.R. § 4.16. Given this change in circumstances, and to accord the veteran due process, the RO should readjudicate the TDIU issue. Accordingly, this issue is remanded to the RO for the following action: After assuring compliance with the notice and duty to assist provisions of the law, the RO should readjudicate the veteran's claim for a TDIU rating. If the claim is denied, the RO should provide the veteran and his representative with a supplemental statement of the case, and give them an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ L.W. TOBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2