Citation Nr: 0610812 Decision Date: 04/14/06 Archive Date: 04/26/06 DOCKET NO. 97-30 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) for residuals of surgery for a right inguinal hernia claimed as due to treatment at a VA facility. 2. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) for a cardiovascular disability claimed as due to treatment at a VA facility. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney At Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. N. Hyland, Associate Counsel INTRODUCTION The veteran served on active duty from March 1943 to January 1946. This matter initially came before the Board of Veterans' Appeals (Board) from a March 1997 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a hearing at the RO in November 1997. On February 27, 2001, the Board issued a decision denying the veteran's claim. In May 2002, the United States Court of Appeals for Veterans Claims (CAVC) issued an Order vacating the Board's February 2001 decision in response to a joint motion by the Secretary of Veterans Affairs and the veteran and remanded the claim to the Board for action consistent with its Order. Subsequently, this matter was sent by the Board for additional development of the evidence and then remanded in October 2003 and March 2005. At this point the Board notes that the issues on appeal had previously been combined as one; however, as the veteran appears to be claiming two distinct additional disabilities, one of which allegedly resulted from his hernia surgery and one of which allegedly resulted from medications prescribed to him, the Board believes that the matter is best characterized as two separate issues on appeal. FINDINGS OF FACT 1. The veteran's current postoperative neuralgia was caused by VA surgical treatment in March 1980 and July 1981. 2. The veteran's current cardiovascular disorders are not the result of VA medical treatment. CONCLUSIONS OF LAW 1. The criteria of entitlement to compensation for postoperative neuralgia as a result of surgical treatment by VA in March 1980 and July 1981, under the provisions of 38 U.S.C.A. § 1151, have been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1996); VAOPGCPREC 40-97. 2. The criteria of entitlement to compensation for a cardiovascular disability as a result of treatment by VA, under the provisions of 38 U.S.C.A. § 1151, have not been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1996); VAOPGCPREC 40-97. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the RO furnished VCAA notice to the veteran subsequent to the initial denial of the veteran's claim. Because the VCAA notice in this case was not provided to the appellant prior to the initial adverse RO decision, it can be argued that the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that notice error of this kind may be non-prejudicial to a claimant. In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). VA has fulfilled its duty to notify the appellant in this case. In the March 2004 and April 2005 letters, VA informed the appellant of the applicable laws and regulations, including applicable provisions of the VCAA, the evidence needed to substantiate the claim, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the letters, VA informed the appellant that it would obtain the available records in the custody of federal departments and agencies and request medical records from identified private health care providers. The Board believes that a reasonable inference from such communications was that the veteran must also furnish any pertinent evidence he himself may have and that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. Also during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, slip op. at 14. Although the present appeal involves a claim under 38 U.S.C.A. § 1151, VA believes that the Dingess/Hartman analysis must be analogously applied. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for compensation under 38 U.S.C.A. § 1151, but there has been no notice of the types of evidence necessary to establish any disability rating and/or the effective date(s). Despite any inadequate notice provided to the appellant with regard to these matters, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). With regard to the claim hereinafter described as postoperative neuralgia, the veteran will have the opportunity to appeal the assignment of a disability rating and effective date, and any necessary notice required under Dingess will be furnished. With regard to the cardiovascular disorder issue, since the Board concludes below that the preponderance of the evidence is against compensation under 38 U.S.C.A. § 1151, any question as to the appropriate disability rating and/or effective date with regard to that issue is rendered moot. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made numerous attempts to assist the appellant in obtaining the evidence necessary to substantiate his claim, including obtaining medical records identified by the appellant. The record includes service medical records, private medical records, and VA medical records. The appellant has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. As such, there has been substantial compliance with the assistance provisions set forth in the new law and regulation. As the veteran has been afforded several VA examinations, the Board finds that the record as it stands contains adequate medical evidence to adjudicate the claim. Thus, the requirements of 38 C.F.R. § 3.159(c)(4) have been met. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim under consideration and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The issues are now ready to be considered on the merits. Analysis 38 U.S.C.A. § 1151 provides that where a veteran shall have suffered an injury, or an aggravation of an injury, as the 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 or in death, disability compensation shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. In Brown v. Gardner, 115 S.Ct. 552 (1994), the U.S. Supreme Court held that VA's interpretation of 38 U.S.C. § 1151 as encompassing only additional disability resulting from VA negligence or from accidents during treatment was incorrect. 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. The Supreme Court further found that the then implementing regulation, 38 C.F.R. § 3.358(c)(3) (1991), was not consistent with the plain language of 38 U.S.C.A. § 1151 with respect the regulation's inclusion of a fault or accident requirement. However, the Supreme Court further held that not every "additional disability" was compensable. The validity of the remainder of 38 C.F.R. § 3.358 was not questioned. See Gardner, 115 S.Ct. 552, 556 n.3 (1994): "We do not, of course, intend to cast any doubt on the regulations insofar as they exclude coverage for incidents of a disease's or injury's natural progression, occurring after the date of treatment...VA's action is not the cause of the disability in those situations." Simply put, the Supreme Court found that the statutory language of 38 U.S.C.A. § 1151 merely requires a causal connection between VA medical treatment and additional disability but that not every additional disability is compensable. Thereafter, the Secretary of Veterans Affairs sought an opinion from the Attorney General of the United States as to the full extent to which § 1151 benefits were authorized under the Supreme Court's decision. The requested opinion was received from the Department of Justice's Office of Legal Counsel on January 20, 1995. In essence, the Department of Justice concluded " that the [Supreme] Court intended to recognize only a narrow exclusion [to the "no fault" rule], confined to injuries that are the necessary, or at most, close to certain results of medical treatment." On March 16, 1995, amended VA regulations were published to conform to the Supreme Court's decision. Section (c)(3) of 38 C.F.R. § 3.358 was amended to remove the "fault" requirement that was struck down by the Supreme Court. 38 C.F.R. § 3.358(c)(1) provides that "[i]t 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." Further, 38 C.F.R. § 3.358(b)(2) provides that compensation will not be payable for the continuance or natural progress of disease or injuries. 38 C.F.R. § 3.358(c)(3) now provides that "[c]ompensation 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." Under the new 38 C.F.R. § 3.358(c)(3), compensation is precluded where disability (1) is not causally related to VA hospitalization or medical or surgical treatment, or (2) is merely coincidental with the VA hospitalization or medical or surgical treatment, or (3) is the continuance or natural progress of diseases or injuries for which VA hospitalization or medical or surgical treatment was authorized, or (4) is the certain or near certain result of the VA hospitalization or medical or surgical treatment. Where a causal connection exists, there is no willful misconduct, and the additional disability does not fall into one of the above-listed exceptions, the additional disability will be compensated as if service-connected. 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 PL 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. However, in an opinion from the VA General Counsel it was held that all claim for benefits under 38 U.S.C.A. § 1151 filed before October 1, 1997, such as the claim at issue, must be adjudicated under the provisions of 38 U.S.C.A. § 1151 as they existed prior to October 1, 1997. VAOPGCPREC 40-97 (December 31, 1997). The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. 38 U.S.C.A. § 7104(c) (West 1991). In sum, the current version of 38 U.S.C.A. § 1131 does not apply in the instant case since 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 regulation, 38 C.F.R. 3.358) in effect prior to the change. Additional Disability from Hernia Surgery The veteran alleges that VA treatment in March 1980 and July 1981 resulted in "nerve entrapment." The Board notes that a May 2003 VA examination report notes that the veteran currently has non-symptomatic postoperative neuralgia as a result of his two hernia surgeries at the VA Medical Center. This is supported by additional private medical records from Kaiser Permanente. Although one VA examiner commented that this is not an uncommon result of hernia surgery, the Board does not interpret that medical opinion to mean that the neuralgia was a necessary or close to certain result of the surgery. Therefore, the Board concludes that entitlement to compensation for postoperative neuralgia incurred as the result of VA surgical treatment is warranted under the provisions of 38 U.S.C.A. § 1151 as in effect when the veteran filed his claim. Cardiovascular Disability The relevant medical evidence of record includes a February 1997 VA examination report which shows that on physical examination, the veteran's apical pulse was regular, and there were no adventitious cardiac sounds, peripheral edema, cyanosis or clubbing noted. The examiner stated that the side effects of Inderal and phenoxybenzamine could cause rapid heart rate and either high or low blood pressure and the fact that the veteran's symptoms improved after taking the medications indicate that they played a role in the reported symptoms. A December 1998 VA examination report notes that the veteran reported a long history of palpitations and vague constitutional symptoms. The veteran reported that he had episodes of palpitation, tachycardia and severe hypertension which were suspected to be pheochromocytoma. He was placed on imipramine, which was subsequently discontinued and then on propranolol and phenoxybenzamine. The examination report shows that the veteran continued to report episodes of palpitations, tachycardia and intermittent bouts of severe hypertension and that after he stopped taking propranolol and phenoxybenzamine, his symptoms slowly abated. He reported that at the time of the examination, he had only palpitations on exertion. On physical examination his heart had a regular rate and rhythm without murmurs or extra sounds. In March 1997, an ambulatory electrocardiogram showed premature ventricular complexes (PVCs). The examiner's assessment was that the veteran's frequent episodes of palpitations probably represented PVCs and that the cause of his PVCs was unclear, but could be hypertensive heart disease. The examiner stated that he saw no relationship between the medications prescribed, specifically propranolol, and any of the palpitations. The examiner stated that he had no experience with the medication phenoxybenzamine, but he doubted that there would be any residual effects after the medication was stopped in the mid- 1980s. In an addendum, the examiner noted that a December 1998 echocardiogram was normal. A March 2001 addendum from the same examiner shows that the veteran attributed fatigue, lack of ability to concentrate and a sinking feeling to the medications prescribed. The examiner noted that he felt it was extremely unlikely that propranolol or phenoxybenzamine would have had any permanent effect on the veteran's health. An August 2003 VA examination report shows that the veteran reported that his problems began in the early 1980s when he developed symptoms of palpitations and fast heartbeat and was diagnosed with high blood pressure. The veteran reported that the VA physician prescribed Inderal and phenoxybenzamine for hypertension and initiated a workup for pheochromocytoma. The veteran claimed that the Inderal and phenoxybenzamine caused worsening dizziness and palpitations. He described his current symptoms as rare palpitations and he denied that he had any significant cardiac problems that limited his activities. The examiner noted that the veteran's fairly extensive cardiac evaluation has been negative. The examiner also noted that the veteran's medical records indicated that he had significant hypertension, documented tachycardia, blurring vision, and memory difficulty preceding the treatment of his hypertension with Inderal and phenoxybenzamine. An electrocardiogram performed on the day of the examination showed normal sinus rhythm. The examiner stated that, with regards to the alleged effect of Inderal, this was a nonselective beta blocker that was commonly used for treatment of hypertension and tachycardia and that side effects of the drug included bradycardia and hypotension. He stated that it would be unlikely that Inderal would induce atrial tachycardia. With regards to phenoxybenzamine, the examiner noted that this drug is an alpha-adrenergic antagonist and that its side effects can include tachycardia or angina. The examiner stated that the veteran's tachycardia preceded treatment with this drug and was not documented as worsening after treatment with the drug. The examiner noted that there was no evidence that a disease was caused or aggravated by VA treatment, particularly by treatment with the drugs mentioned. The examiner noted that there was documentation that the veteran was symptomatic with palpitations and tachycardia prior to treatment with the drugs and no evidence of worsening of these symptoms. The examiner also noted that the veteran's records did not show a marked resolution of his complaints following cessation of the medications in question. The examiner noted that if the drugs caused the symptoms reported by the veteran, then discontinuation of the medications should have resulted in resolution of the symptoms as the half lives of the drugs are relatively short. The examiner noted that his colleagues had researched the drugs and there was no evidence showing that treatment with these drugs would lead to long-term conditions that would persist despite discontinuation with the medications. In summary, the examiner stated that he found it unlikely that treatment provided by VA, including prescribing Inderal or phenoxybenzamine, aggravated any identifiable cardiovascular condition or created any cardiovascular condition based on records and history provided. At this point, the Board recognizes the veteran's testimony from his November 1997 RO hearing and the statements from two other dentists and his wife who is a retired dietician, all of which attest to the veteran's symptoms of fatigue, dizziness, heart palpitations, etc. The Board acknowledges that the veteran, the two dentists who submitted statements, and the veteran's wife essentially allege that the veteran's symptoms were either caused by or aggravated by the medications prescribed by the VA physicians to treat his hypertension. The Board also acknowledges that the dentists and the dietician all possess some degree of medical expertise and training. Nevertheless, the Board believes that their opinions regarding the etiology of the veteran's symptoms are not highly probative as none of them appear to have been based on examination of the veteran or his extensive medical records. Also, none of them document that the veteran currently suffers from any diagnosed cardiovascular disability. On the other hand, the three VA examination reports all show physical examination of the veteran and extensive review of the veteran's medical records. The February 1997 VA examination report does appear to show that the medications prescribed by the VA "could cause" the symptoms reported by the veteran. First of all, this opinion is far too speculative in nature to be highly probative. The Board notes that medical evidence which merely indicates that the particular disorder "may or may not" exist or "may or may not" be related, is too speculative in nature to establish the presence of said disorder or the relationship thereto. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Thus, medical probabilities and possibilities and unsupported medical opinions carry negligible probative weight. Id. Moreover, the opinion as expressed does not relate any current cardiovascular disability to any VA treatment. Thus, it does not go to show that the veteran has a current cardiovascular disability that was either caused or aggravated by VA treatment. The December 1998 VA examination report clearly states that the examiner's opinion was that it was extremely unlikely that the medications prescribed to the veteran by the VA would have any permanent effect on the veteran's health. Moreover, the August 2003 VA examiner, after a particularly exhaustive review of the veteran's medical records, noted that he found it unlikely that treatment provided by VA, including prescribing Inderal or phenoxybenzamine, aggravated any identifiable cardiovascular condition or created any cardiovascular condition based on records and history provided. In short, the preponderance of the evidence is against a finding that the veteran has additional cardiovascular disability as a result of VA medical treatment. As such, compensation for a cardiovascular disability pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Entitlement to compensation benefits for postoperative neuralgia as a result of VA surgerical treatment pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) is warranted. To this extent, the appeal is granted. Entitlement to compensation benefits for cardiovascular disability as a result of VA treatment pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) is not warranted. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs