Citation Nr: 0529194	
Decision Date: 11/01/05    Archive Date: 11/14/05

DOCKET NO.  02-04 147	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Washington, 
DC


THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) 
under the provisions of 38 U.S.C.A. § 1151 for the cause of 
the veteran's death as a result of treatment provided by a 
Department of Veterans Affairs Medical Center. 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Prem, Associate Counsel


INTRODUCTION

The veteran served on active duty from August 1954 to May 
1958.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a May 2000 rating decision issued by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Washington, D.C., which, in pertinent part, denied 
entitlement to DIC under U.S.C. §1151.  


FINDINGS OF FACT

1.  All evidence necessary to decide the claim addressed in 
this decision has been obtained; the RO has notified the 
appellant of the evidence needed to substantiate the claim 
and obtained all relevant evidence designated by the 
appellant.

2.  The veteran sustained a fracture of the left tibia as the 
result of VA treatment; the fracture never healed properly 
and complications included a staph aureus sepsis, which 
materially contributed to his death.  


CONCLUSION OF LAW

The criteria for entitlement to DIC under 38 U.S.C.A. § 1151 
for the cause of the veteran's death due to VA treatment have 
been met.  38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 
(1996).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to assist the appellant in the development of 
facts pertinent to her claim.  On November 9, 2000, the 
President signed into law the Veterans Claims Assistance Act 
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).  
This law redefines the obligations of VA with respect to the 
duty to assist and includes an enhanced duty to notify a 
claimant as to the information and evidence necessary to 
substantiate a claim for VA benefits.  

First, VA has a duty to notify the appellant of any 
information and evidence needed to substantiate and complete 
a claim.  38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 
3.159(b) (2004).  Information means non-evidentiary facts, 
such as the claimant's address and Social Security number or 
the name and address of a medical care provider who may have 
evidence pertinent to the claim.  See 66 Fed. Reg. 45620, 
45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2004).  
Second, VA has a duty to assist the appellant in obtaining 
evidence necessary to substantiate a claim.  38 U.S.C.A. § 
5103A (West 2002); 38 C.F.R. § 3.159(c) (2004).  

As discussed in more detail below, sufficient evidence is of 
record to grant the appellant's claim for DIC under the 
provisions of 38 U.S.C.A. § 1151 for the cause of the 
veteran's death as a result of treatment provided by a 
Department of Veterans Affairs Medical Center.  Therefore, no 
further development is needed with regard to this claim.  

Factual Background

A certificate of death on file shows that the veteran died in 
the Washington, D.C. VA Medical Center on November 17, 1997 
at the age of 61.  The immediate cause of death was recorded 
as cardiopulmonary arrest, due to (or as a consequence of) 
renal failure, due to (or as a consequence of) staph aureus 
sepsis, due to (or as a consequence of) alcoholic liver 
cirrhosis.  No other diseases were noted on the death 
certificate.  

The appellant contends that while being treated at the VA 
Medical Center in Washington, D.C., her husband (the veteran) 
was dropped by a nurse and an orderly who were lifting him 
out of bed.  As a result of the fall, the veteran suffered a 
fracture of the left leg that subsequently became infected.  
The staph aureus sepsis infection, she alleges, materially 
contributed to the veteran's death.  

The medical records reflect that the veteran was admitted to 
the intensive care unit on April 25, 1997, for treatment of 
upper gastrointestinal bleeding secondary to esophageal 
varices.  Several days later, and after leaving the intensive 
care unit, VA staff noticed that the veteran had pain and 
swelling of the left lower extremity.  An X-ray revealed that 
the veteran had a tibial fracture, apparently sustained while 
being dropped in the intensive care unit.  Orthopedics casted 
the left leg.  The veteran was discharged on May 2, 1997, 
with discharge diagnoses of alcohol abuse, alcohol cirrhosis, 
and insulin dependent diabetes mellitus.  

The veteran was hospitalized from June 4-6, 1997, with a 
three-week history of abdominal distention and a bulging mass 
of his umbilicus.  He was admitted for tapping of his 
presumed ascitic fluid and diuresis, in preparation for an 
umbilical hernia repair.  The discharge diagnosis was insulin 
dependent diabetes mellitus, cirrhosis, status-post 
lapascopic cholecystotomy and umbilical hernia.  

The veteran was hospitalized from July 9-13, 1997, for 
evaluation of complaints of pain and swelling in the left 
great toe.  He had a history significant for delayed union of 
the left distal tibia and fibula fracture.   He had a 
moderate amount of swelling in the left great toe and no 
purulent discharge from the wound.  The veteran's short cast 
was removed and his skin was checked.  There was warmth and 
erythema in the lower leg with some tenderness around the 
midcalf and in the vicinity of the fracture.  There was gross 
motion at the fracture site with manipulation.  A splint was 
applied to immobilize the left lower extremity.  The veteran 
was placed on bed rest with the left lower extremity 
elevated.  On the day after his admission, the veteran's pain 
in the left lower extremity had improved significantly along 
with the diminution of the edema, erythema and palpable 
warmth.  Antibiotics were continued and the veteran was 
discharged in stable condition with instructions to follow-up 
with the orthopedic clinic in one to two weeks.  The 
discharge diagnosis was cellulitis, left lower extremity.  
The secondary diagnoses were delayed union, fracture, left 
distal tibia; insulin dependent diabetes mellitus; chronic 
liver insufficiency; diabetic vascular disease and chronic 
anemia.  

The veteran was hospitalized on September 18, 1997 with 
complaints of pain, swelling and deformity of the left leg 
and difficulty walking for the past four months.  The veteran 
was admitted for a planned osteotomy of the distal tibia and 
internal stabilization of the left distal tibia.  It was 
noted that at the time of the initial injury, the veteran's 
fracture was severely displaced and it was felt that he could 
be managed by simple cast immobilization.  The position of 
the fracture in the cast was considered to be satisfactory 
for the first few weeks.  The veteran had persistent swelling 
in the left lower extremity and developed spontaneous areas 
of skin ulceration on his toes and the distal metatarsal 
areas, along with a pin site on the proximal tibia.  The cast 
was removed for better wound care.  The initial reduction 
could not be maintained and healing at the fracture site was 
delayed.  Due to the difficulty in maintaining the reduction 
with the development of the progressive angular deformity, it 
was felt that an attempt should be made to realign the 
fracture in a manner that would facilitate weight-bearing.  

However, at the time of the surgery there was limited motion 
at the fracture site and the surgical plan was modified.  An 
osteotomy was performed on the fibula and proximal to the 
injury on the tibia.  This created a segmental type fracture.  
With the "segment" angulated, surgeons were able to line up 
the major proximal and distal fragments and correct the 
valgus deformity.  The fracture site was stabilized with 
cancellous allograft material along with calcium hydroxy 
appartite.  The entire construct was stabilized with an 
external fixation frame.  

The veteran's wound was closely observed along with his total 
clinical condition.  He did have some sero-sanguinous 
drainage from the wound site for several days.  However, this 
was sterile and the wound itself healed without signs of 
sepsis.  The pin tracks also remained clean.  At the time of 
discharge, pin sites were clean and dry and the surgical 
wound on the anterior and lateral parts of the leg were 
healed.  There was no drainage from the pin sites.  The 
entire fixation frame was in place and the correction of the 
valgus deformity was being maintained.  

The veteran underwent a VA examination on September 22, 1997.  
The report provides that X-rays performed on August 27, 1997, 
reportedly showed a comminuted fracture of the left tibia and 
fibula with lateral angulation and callous formation.  On 
physical examination, there was 2+ pitting edema over both 
lower extremities form the knee down.  The left leg showed 
several pins inserted for reduction of the fracture.  There 
was no clubbing or cyanosis.  The veteran's white blood cell 
count was 6.1.  The diagnosis was cirrhosis of the liver with 
portal hypertension with ascites and esophageal varices; 
diabetes mellitus with good control of blood sugars; 
comminuted fracture of the left tibia and fibula, status-post 
surgical reduction; normocytic anemia; and hypoalbuminemia, 
probably secondary to cirrhosis of the liver with poor 
synthetic function.  

The veteran was admitted to the VAMC in October 1997, for 
evaluation of mental status changes, oliguria of one weeks' 
duration, subjective fevers and diarrhea.  On physical 
examination, his extremities revealed asterixis, 2+ pitting 
edema in the lower extremities and pus draining from the 
external fixation sites.  White blood count was elevated at 
22.9.  

The veteran was admitted to the medical floor, was anuric 
overnight, and was then transferred to the intensive care 
unit.  The veteran's urine output increased and he was 
returned to the floor.  He became anuric again and was 
transferred back to intensive care.  At that point, he was 
treated for sepsis and infectious disease was consulted.  

The veteran developed a low-grade DIC with elevation of the PT 
level, decrease of the platelet count in the 50,000 range and 
persistent anemia.  He also developed a severe epistaxis and a GI 
bleed.  He was dialyzed secondary to ATN.  

On November 17, the veteran was in pulmonary arrest at 10:10 am.  
He was found with pulseless electrical activity and later 
asystole.  He was treated with ACLS guidelines and developed a 
brief run of ventricular tachycardia that spontaneously reverted 
to asystole.  During the code blue, the veteran never regained 
pulse or spontaneous respiration and he was pronounced dead at 
10:30 am.

The Board sought a medical opinion to determine whether it 
was at least as likely as not that the veteran developed 
complications from a leg fracture as a result of VA treatment 
and whether it was at least as likely as not that any such 
complications caused or materially contributed to the 
veteran's death.  Dr. F.E.W. noted that staph aureus is a 
very common skin pathogen and would be as likely as not the 
source of his staphpylococcal bacteremia.  He reasoned that 
the veteran suffered a fracture of the left leg that never 
healed properly.  Although the veteran's overall poor 
physical status contributed to his inability to heal, the 
infections would never have developed had he not been dropped 
while under VA care.  Dr. F.E.W. opined that it was at least 
as likely as not that the veteran developed complications (to 
include a staph aureus infection) from a leg fracture as a 
result of VA treatment.  

Dr. F.E.W. also explained that the veteran's death was 
related to several factors, including end stage liver disease 
and diabetes mellitus (both of which would affect his ability 
to recover from any significant medical condition).  The 
veteran's left leg injury and subsequent surgery were a 
likely source of the staph infection, and his underlying poor 
physical state would likely have allowed such an infection to 
spread to the blood.  The subsequent bacteremia and sepsis 
contributed to the veteran's death.  Therefore, Dr. F.E.W. 
opined that it is at least as likely as not that the 
complications from treatment of the veteran's leg fracture 
materially contributed to the veteran's death.  

Laws and Regulations

The provisions of the 38 U.S.C.A. § 1151 (West 2002) provide 
that where any veteran shall have suffered an injury, or an 
aggravation of any injury, as a result of hospitalization, 
medical or surgical treatment, not the result of such 
veteran's own willful misconduct, and such injury or 
aggravation results in additional disability to or death of 
the veteran, disability or death compensation shall be 
awarded in the same manner as if such disability or death 
were service connected.

In Brown v. Gardner, 115 S. Ct. 552 (1994), the United States 
Supreme Court held that VA's interpretation of 38 U.S.C.A. § 
1151 as encompassing only additional disability resulting 
from VA negligence or from accidents during treatment was 
unduly narrow and was not consistent with the plain language 
of the statute.  The Supreme Court found that the statutory 
language of 38 U.S.C.A. § 1151 simply required a causal 
connection between VA hospitalization and additional 
disability, and that there need be no identification of 
"fault" on the part of VA.

However, the Supreme Court further held that not every 
"additional disability" was compensable.  The Supreme Court 
did not intend to cast any doubt on the regulations insofar 
as they excluded coverage for incidents of a disease's or 
injury's natural progression, occurring after the date of 
treatment.  Gardner, 115 S. Ct. at 556 n.3.  In sum, the 
Supreme Court found that the statutory language of 38 
U.S.C.A. § 1151 simply required a causal connection between 
VA medical treatment and additional disability.  The Supreme 
Court acknowledged that there may be additional disability 
that is not the result of VA treatment, such as additional 
disability due to the natural progress of the disability, and 
that such additional disability is not compensable under § 
1151.

On March 16, 1995, amended VA regulations were published to 
conform with the Supreme Court's decision.  The regulations 
provided that it was necessary to show that the additional 
disability was actually the result of the disease or injury 
or an aggravation of an existing disease or injury and not 
merely coincidental therewith. 38 C.F.R. § 3.358(c)(1).  The 
mere fact that aggravation occurred is not sufficient to 
warrant compensation in the absence of proof that it was the 
result of training, hospitalization, medical or surgical 
treatment, or examination.  38 C.F.R. § 3.358(c)(2).  
Compensation is not payable for the necessary consequences of 
treatment or examination, which are those consequences that 
are certain to result from, or were intended to result from 
the treatment or examination administered.  38 C.F.R. § 
3.358(c)(3).  Compensation is also not payable for the 
continuance or natural progress of the disease or injury for 
which the treatment was authorized.  38 C.F.R. § 3.358(b)(2).

Effective October 1, 1997, 38 U.S.C.A. § 1151, relating to 
benefits for persons disabled by VA treatment or vocational 
rehabilitation, was amended by Congress. See Section 422(a) 
of PL 104-204.  The purpose of the amendment is, in effect, 
to overrule the Supreme Court's decision in Gardner, which 
held that no showing of negligence is necessary for recovery 
under § 1151.  However, for claims filed prior to October 1, 
1997, as here, a claimant is not required to show fault or 
negligence in medical treatment.  See VAOPGCPREC 40-97 
(claims filed before October 1, 1997 must be adjudicated 
under the provisions of § 1151 as they existed prior to that 
date). 

In determining that additional disability exists, the 
veteran's physical condition immediately prior to the disease 
or injury upon which the claim for compensation is based will 
be compared with the subsequent physical condition resulting 
from the disease or injury.  38 C.F.R. § 3.358(b)(1).  
Compensation will not be payable for the continuance or 
natural progress of diseases or injuries for which the 
hospitalization or treatment was authorized.  38 C.F.R. § 
3.358(b)(2).

Analysis

In analyzing the record, the Board keeps in mind that VA 
decisions must be based on competent medical evidence.  See 
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 
U.S.C.A. § 5103A (West 2002).  A lay witness can provide 
evidence, but only as to what she has actually experienced or 
observed.  She cannot provide competent evidence on medical 
questions or otherwise provide a competent opinion beyond the 
scope of her training and experience.  See Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992); see also 38 C.F.R. § 
3.159(a) (2004).  A lay witness' assertions of medical 
causation cannot constitute competent evidence.  See 
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

In this case, the most competent medical evidence is a 
medical opinion supplied by Dr. F.E.W.  He opined that the 
veteran suffered a fracture of the left leg that never healed 
properly, and although the veteran's overall poor physical 
status contributed to his inability to heal, the infections 
(staph aureus, staphpylococcal bacteremia) would never have 
developed had he not been dropped while under VA care.  He 
further opined that it is at least as likely as not that the 
veteran developed complications (to include a staph aureus 
infection) from a leg fracture as a result of VA treatment.  

Dr. F.E.W. also acknowledged that the veteran's death was 
related to several factors, including end stage liver disease 
and diabetes mellitus (both of which would affect his ability 
to recover from any significant medical condition).  However, 
he opined that since the veteran's left leg injury was a 
likely source of the staph infection, which subsequently 
spread to the blood, and the subsequent bacteremia and sepsis 
contributed to the veteran's death; it is at least as likely 
as not that the complications from treatment of the veteran's 
leg fracture materially contributed to the veteran's death.  

In view of the foregoing, and in the absence of any medical 
opinion to the contrary, the Board finds that the medical 
evidence shows that the veteran's residuals of a fracture of 
the left tibia are "additional disability", within the 
meaning of the applicable law and regulation, that such 
residuals included a staphylococcal infection, and that the 
competent evidence is at least in equipoise as to whether the 
staph infection caused a staphylococcal bacteremia or sepsis 
that materially contributed to the veteran's death.  With 
application of the benefit of the doubt rule, entitlement to 
DIC under the provisions of 38 U.S.C.A. § 1151 for the cause 
of the veteran's death as a result of treatment provided by a 
Department of Veterans Affairs Medical Center is warranted.  
38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1996).  


ORDER

Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 
for the cause of the veteran's death as a result of VA 
treatment is granted.



	                        
____________________________________________
	R. F. WILLIAMS
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs