Decision Date: 10/24/95 Archive Date: 10/24/95 DOCKET NO. 88-31 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151 (formerly § 351). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The veteran, the appellant's spouse, had active service from November 1942 to June 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision of the Roanoke, Virginia, Regional Office (RO), which denied entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151 (formerly § 351). Historically, during a January 1991 hearing held before the Board, appellant withdrew her claim for service connection for the cause of the veteran's death, and raised in its place the issue of entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C. § 351. In February 1991, the Board remanded that issue for evidentiary development, and initial consideration by the RO. Subsequently, in Gardner v. Derwinski, 1 Vet.App. 584 (1991), the United States Court of Veterans Appeals (Court) invalidated 38 C.F.R. § 3.358(c)(3), a section of the regulation implementing 38 U.S.C.A. § 1151, on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. The decision was affirmed by the United States Court of Appeals for the Federal Circuit (Court of Appeals) in Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), and subsequently appealed to the United States Supreme Court (Supreme Court). On December 12, 1994, the Supreme Court issued its decision in Gardner, affirming the decisions of the Court of Veterans Appeals and the Court of Appeals. Brown v. Gardner,__U.S.__, 115 S. Ct. 552 (1994). Thereafter, the Secretary of the VA sought an opinion from the Attorney General of the United States (Attorney General) as to the full extent to which benefits were authorized under the Supreme Court's decision. On January 20, 1995, the Secretary received an opinion from the Department of Justice's Office of Legal Counsel. On January 26, 1995, the Chairman of the Board announced the lifting of the Board's stay on the adjudication of cases affected by Gardner involving claims for benefits under 38 U.S.C.A. § 1151. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that treatment the veteran received at Department of Veterans Affairs (VA) medical facilities was inadequate or improper. It is argued that VA medical care providers were aware for years that he had an abdominal aortic aneurysm, and that due to their lack of timely surgical intervention to repair the aneurysm, the aneurysm ultimately ruptured during VA hospitalization in November 1986, resulting in his death. Additionally, it is asserted that VA medical care providers improperly treated him with Coumadin, that this was contraindicated by his having the aneurysm, and that this improper treatment materially contributed to his death. It is requested that the benefit of the doubt doctrine be applied. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is in equipoise, and warrants allowance of appellant's claim for dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151. FINDINGS OF FACT 1. The clinical evidence reveals that beginning at least in March 1984, VA medical care providers clinically evaluated the veteran's abdominal aortic aneurysm, including by abdominal ultrasound measurements. Historically, it was noted that this aneurysm had been found in 1980 at the time of coronary bypass grafting at a private facility. In April 1985 it was 5 cm. in size. 2. Since approximately July 1986, the veteran had been taking prescribed Coumadin, following a right cerebrovascular accident due to emboli from recurrent atrial fibrillation. 3. In May 1986, the aneurysm was noted to be 5.5 cm. in size. 4. On November 14, 1986, the veteran was admitted to a VA hospital for an unrelated problem. During that hospitalization, he had abdominal complaints, and on November 21st, an ultrasound revealed that, since a May 1, 1986 ultrasound, the abdominal aortic aneurysm had enlarged from 5.5 centimeters to 6.2 centimeters in diameter. Thereafter, he was scheduled for an angiography to delineate the aneurysm and to evaluate the need for surgery. 5. On November 26, 1986, he experienced abdominal pain and shock due to rupture of the aneurysm; an attempt to surgically repair the ruptured aneurysm proved unsuccessful; he died that same day. 6. An autopsy protocol report and a death certificate listed hemorrhage due to ruptured abdominal aortic aneurysm as the immediate cause of veteran's death. 7. No surgery was attempted or performed on the abdominal aortic aneurysm until it ruptured; the veteran was on Coumadin at the time of the terminal event. 8. There is no medical evidence on file that the observed expansion of the aneurysm and the subsequent rupture were due to natural progress. 9. The evidence is evenly balanced as to whether the veteran died as a result of VA treatment in continuing the use of Coumadin and not attempting to repair the aneurysm prior to the terminal event. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the criteria for an award of dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151, have been met. 38 U.S.C.A. §§ 1151, 5107(b) (West 1991); 38 C.F.R. § 3.358(a)-(c)(1)(2) (1994); and interim final rule, 60 Fed. Reg. 14,223 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION After reviewing the evidence on file the Board concludes that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the claim presented is not inherently implausible. Furthermore, the Board concludes that all facts pertinent to the claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a) (West 1991). This decision will be based on the evidence on file. Development requested in two prior Board remands has been less than complete. In part, the Medical Center has reported that all investigation reports for events prior to 1989 have been destroyed. It is not clear that all hospital records are available for VA and private treatment that was provided. Nevertheless, in view of the evidence that is on file, and the result reached herein, the Board has proceeded based on the evidence of record. In pertinent part, 38 U.S.C.A. § 1151 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. For informational purposes, the RO's March 1995 rating decision denied the appellant's § 1151 claim on the basis that the claim was not well-grounded, apparently determining, in part, that any additional disability had not resulted from VA medical treatment. The adverse rating decision, having been rendered after Gardner, also noted that there was no evidence "to indicate that the veteran's death was due to or the proximate result of negligent medical services provided" by the VA. This is the standard of negligence that was voided by the Supreme Court in Gardner. It is the decision of the Board, however, in view of the outcome, that proceeding to decision in this matter will not prejudice the appellant. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3), remain valid. See Brown, at 556 n.3. VA recently published an interim final rule, 60 Fed. Reg. 14,223 (1995) (to be codified at 38 C.F.R. § 3.358(c)), which provides, in pertinent part: (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. While it appears that the RO has not adjudicated this claim under that interim final rule, this interim final rule does not affect the outcome of this case since the Board is granting an allowance of the claim. 38 C.F.R. § 3.358, the regulation implementing 38 U.S.C.A. § 1151, provides, 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. (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,.... It is reiterated that on December 12, 1994, the Supreme Court issued its decision in Gardner, affirming the decisions of the Court of Veterans Appeals and the Court of Appeals. 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. The clinical evidence reveals that as of at least March 1984, VA medical care providers were aware of the veteran's abdominal aortic aneurysm. The terminal hospital summary notes that the aneurysm was first noted at the time of bypass grafting in 1980. As of April 1985, it was noted to be 5 cm. in size. In May 1986, it had grown by .5 cm. As of the final evaluation prior to rupture, it had grown an additional .7 cm. During the latter stages of this time the appellant was continued on blood thinner. The appellant has testified that as they rushed the veteran to surgery on the ruptured aneurysm a doctor told her there was no hope as the veteran had been on Coumadin. The clinical records and medical opinions on file do not reveal whether the expansion of the aneurysm was due to its natural progress. For informational purposes the Board notes that there is some medical authority that suggests surgical repair of an aneurysm is the preferred treatment. See e.g., L. M. Tierney, Jr., et al. eds., Current Medical Diagnosis and Treatment 386 (1994). The records on file contain no information as to why there was no consideration of repairing the aneurysm during the time it was watched, especially while the appellant was on blood thinning medication. While the appellant did have multiple medical problems, he also was considered a good candidate for surgical repair of a hernia in October 1984. This was successfully completed without apparent lasting adverse complication. It is contended that the appellant should not have been on Coumadin, or that it was not properly monitored. As to the latter, this contention goes to negligence and no longer provides a basis for relief. As to the former, a question is raised, to which no medical explanation is present in the records. The appellant's representative has provided a list of precautions concerning this medication for the record. There are many potential side effects which could complicate bleeding problems. Similarly, there is no explanation in the records as to why consideration was not given to repairing the aneurysm until the rupture that caused death. He had had surgery in 1981 for lung cancer, and in 1984 for a hernia. It is possible that earlier repair, may, as is contended, have extended his life. As noted, the medical records do not provide a basis for answering that contention. It is the conclusion of the Board, in this case then, that the evidence on record is evenly balanced. Treatment by the VA can reasonably be implicated in the cause of the additional disability in this case, the veteran's death. As such, it is concluded under the law as currently understood, there is a basis to allow this claim. 38 U.S.C.A. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.358; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to dependency and indemnity compensation pursuant to the provisions of 38 U.S.C.A. § 1151 is granted. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -